Findings Of Fact Petitioner, Deltampa, Inc., a Florida corporation and wholly owned subsidiary of the Deltona Corporation, a Delaware corporation, is the owner of approximately 5,408 acres of property located in northern Hillsborough County, Florida. (Testimony of Motchkavitz, Exhibit 4) Petitioner proposes to develop its property into a functionally interrelated residential community called Tampa Palms, which will ultimately consist of approximately 13,500 single-family and multiple-family dwelling units, a regional shopping center, an industrial park, golf courses, parks and related recreational facilities, commercial and office facilities, and educational facilities. (Testimony of Motchkavitz; Exhibits 1, 6) The proposed name of the new district shall be the Tampa Palms Community Development District, and its external boundaries are set forth in the Legal Description at Exhibit 4. (Exhibit 4-5) The Tampa Palms development is planned to be constructed over a period of 20 years in four phases of five years each. The total area to be developed consists of approximately nine square miles of which some 60 percent or about 3,000 acres will involve low-density housing or open space, parks, and golf courses. Residential development will take place over 1,651 acres or about 30 percent of the site. A full range of community support facilities planned to meet the needs of the residents will include two school sites, 20 park sites, six church sites, two fire station sites, and two public facility sites, totalling about 300 acres or some six percent of the site. There will be 3,000 single-family residential units and about 10,500 multiple-family units. Density of the 1,650 acres of residential development will be approximately 8.5 units per acre, with 2.2 units per acre for single family units. Maximum density in the multifamily area will be 35 units per acre, and overall density for the entire site is projected to be 2.5 units per acre. (Testimony of Motchkavitz, Exhibit 1A) The site in question is a contiguous parcel which is bordered on the east generally by the lower Hillsborough River flood detention area and the proposed 1-75 right-of-way for the interstate highway which is under construction at the present time. The Hillsborough River runs across the southern portion of the site and Cypress Creek, an ill-defined, non-navigable water course, is on the western portion of the site. The site is approximately 10 miles northeast of Tampa. The property is bisected diagonally northeast to southwest by State Road 581. Interstate highway 1-75 passes by the property at the northwest corner and will eventually merge with the 1-75 Tampa bypass north of the site. The City of Tampa Morris Bridge Water Treatment Plant is located adjacent to the property at the northeast corner on a 60-acre site donated to the city by Deltona and will provide service to residents of Tampa Palms. Hooker's Point Wastewater Facility has a force main within one mile of Tampa Palms and will service the proposed community. The University of South Florida is located immediately to the south of Petitioner's site. (Testimony of Motchkavitz; Exhibits 1, 5) A proposed industrial area will be located in the northeast corner of the property consisting of approximately 75 acres. It is contemplated that only light industry of a research and development type will be conducted there. Additionally, about 150 acres in that general area will be used for shopping centers, hotel, and office facilities. (Testimony of Motchkavitz; Exhibits 1, 6) Potable water for the future residents of Tampa Palms will be supplied by the City of Tampa, which operates a water treatment plant adjacent to the northeast corner of the proposed development. Non-potable water will be developed by on-site wells to supply irrigation water to the proposed golf courses. The city water treatment plant has sufficient capacity to supply adequate water supplies to the estimated peak population of 31,700. Off-site wastewater treatment will be provided by the City of Tampa advanced wastewater treatment plant at Hooker's Point. No septic tanks will be used at the Tampa Palms development. Wastewater will be collected by a central system and pumped off site for treatment. Solid waste generated by the development will be collected twice weekly by the Hillsborough County Solid Waste Control Department and will be disposed of at a county landfill site. (Testimony of Apthorp; Exhibits 1, 6) The Hillsborough River has a history of flooding in periods of high water and heavy rainfall in the area surrounding Tampa. Several years ago, the Southwest Florida Water Management District and the Corps of Engineers entered into a program called the Lower Hillsborough Flood Detention Program which would attempt to restrict the flooding downstream by acquiring some 17,000 acres to the east of the Tampa Palms site, and constructing a dam at the southeast corner of the Tampa Palms property. It is an open structure through which the river flows in normal conditions, but has the capability of being closed in periods of high water and creating a temporary impoundment. This system also includes a levee which parallels the eastern side of the development site, thus providing flood protection from that direction. To prevent flooding of the site from the Cypress Creek system on the west, Petitioner plans to construct an earthen levee along the western boundaries of its property in a north-south direction and laterally across the northern border in an easterly direction until the elevation is sufficient to preclude flooding problems. The structure will have a maximum height of about six feet in the southernmost section and be as high as only two to three feet in the northern portions. It will have a freeboard or additional dirt belt above the 500-year flood level of Cypress Creek of one-and-a-half feet. The levee will have a 10-foot wide top and a six to one foot slope. It will be sodded and grassed to prevent erosion. There will be several drainage structures throughout the levee to allow drainage from the property to pass into Cypress Creek when the waterway is at a low flow level. These will consist of culverts with gate structures which will require monitoring and continuing maintenance to be performed by Petitioner or its successors. Petitioner plans an extensive drainage system for its property to maintain the integrity of the wetlands areas and to prevent pollution and excessive surface runoff into the Hillsborough River. The proposed drainage system for the project will consist of a network of 15-foot wide grassy swales adjacent to streets and rear yards from which runoff will flow into wetlands or lakes, and then through storm water structures to ultimate outfall into the Hillsborough River. The system is designed to permit drainage by gravity through extensive areas of natural vegetation to remove pollutants and result in approximately the same flow into receiving waters as existed prior to development of the property. Some 180 acres of lakes will be created from areas dredged to secure fill for the development. All lake areas will be deeper than six feet to lessen the establishment of aquatic plants and will be monitored for water quality as necessary. About twenty 50-foot long concrete seawalls will be built near the lakes to impound water, thereby creating additional storage, and equipped with piping which will allow the water to slow the drain down after storm events. It is anticipated that such controlled structures will eliminate the potential for any flood-type impacts to downstream users and allow more contact time with natural wetland vegetation. The drainage system will be operated and maintained by Petitioner until such time as an acceptable and qualified public entity assumes such responsibilities. (Testimony of Motchkavitz, Exhibit 14) Fire and police protection will be provided to the proposed district by Hillsborough County. In addition, the County will provide for solid waste collection and issuance of building permits. (Testimony of Motchkavitz, Exhibit 1) Pursuant to application of the Deltona Corporation on November 8, 1979, for approval of a development of regional impact pursuant to the provisions of Section 380.06, F.S., the Hillsborough County Board of County Commissioners, by Resolution adopted October 1, 1980, issued a Development Order approving the application, subject to various conditions. In the Development Order, the Board of County Commissioners concluded that the development would not unreasonably interfere with the achievement of the objectives of the adopted state land development plan applicable to the area and was consistent with local land development regulations, and with the report and recommendations of the Tampa Bay Regional Planning Council. (Exhibit 7) By Resolution dated May 6, 1981, the Board of County Commissioners expressed its opinion that Petitioner should continue its efforts to establish a community development district for the Tampa Palms development and specifically found that: The creation of a community develop- ment district in conjunction with the development of Tampa Palms is not, in the Board's opinion, inconsistent with the approved Hillsborough County Com- prehensive Land Use Plan or other local land use regulations, and A community development district appears, in the Board's opinion, to be the best alternative available for delivering to and maintaining the com- munity development services and facil- ities in the Tampa Palms area, and The services and facilities to be operated and maintained by the proposed district do not appear to be, in the Board's opinion, incom- atible with the capacity and uses of existing and proposed local and regional community development ser- vices, and The Tampa Palms development, due to its size and location and the extent of community services and facilities to be created within the development appears to be, in the Board's opinion, amenable to separate special district government. (Exhi- bit 2) The five persons designated to serve as initial members of the Board of Supervisors of the proposed community development district are Frank E. Mackle, III; Richard F. Schulte, William I. Livingston, Paul M. Schaefer, and Edward G. Grafton. It is intended that they shall serve as the Board of Supervisors until replaced in accordance with Section 190.006, F.S. (Petition) The following ultimate findings are made based upon the testimony and documentary evidence adduced at the hearing: All statements contained within the Petition have been found to be true and correct. (Testimony of Apthorp) The creation of the district is not inconsistent with any applicable element or portion of the state comprehensive plan or of the effective local government comprehensive plan. This finding is supported by the Development Order and subsequent Resolution issued by the Hillsborough County Board of County Commissioners. (Exhibits 2, 7) The area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. This finding is supported by the previous findings of fact concerning the size of the proposed district and the fact that the 5,400 acres are in one contiguous parcel. The district is the best alternative available for delivering community development services and facilities to the area that will be served by the district. This finding is supported by the Development Order issued by the Hillsborough County Board of County Commissioners and its subsequent Resolution acknowledging that a community development district would be the best alternative available for such purposes. Hillsborough County is presently not in a position to provide many of the essential services required by a community of the contemplated size of Tampa Palms, including but not limited to public streets and an extensive surface water management system. The proposed development will result in a substantially self-contained community which will be comprehensively planned so as to provide necessary services required by its residents. A community development district will be in a position to provide reliable operation and maintenance of those services and facilities not otherwise conducted by the County or other appropriate unit of local government. (Exhibits 2, 7) The community development services and facilities of the district will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. The proposed development of the property is scheduled, in accordance with the terms of the County Development Order, to coincide with the provision of essential area services which will not be provided by the district. (Exhibits 2, 7) The area that will be served by the district is amenable to separate special-district government. This finding is supported by the foregoing findings of fact which establish that the nature and location of the proposed Tampa Palms development would be facilitated and best served by the establishment of a separate special-district government under all of the facts and circumstances.
Recommendation Based upon the findings of fact and conclusions of law hereby submitted, it is RECOMMENDED: That the Florida Land and Water Adjudicatory Commission grant the Petition of Deltampa, Inc., and adopt a rule which will establish the Tampa Palms Community Development District, pursuant to Section 190.005(1), Florida Statutes. DONE and ENTERED this 20th day of October, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1981. COPIES FURNISHED: Robert S. Schumaker, Esquire Deltona Corporation Post Office Box 369 Miami, Florida 33145 Honorable John T. Herndon Secretary, Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, Florida 32301
The Issue Whether Application #01109-L and Application #01109-J for a public water supply system to serve approximately 17,500 acres of land in Lee County, Florida, should be granted and a permit issued by the South Florida Water Management District.
Recommendation Based upon the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that a water use permit be issued to the applicant pursuant to Applications #01109-J and #01109-L for a total annual allocation of 1.64 BGY for ten (10) years subject to the thirty-one (31) limiting conditions attached to the "Florida Cities Water Company" report, which report is a part of the record of this case. DONE and ORDERED this 18th day of January, 1980, in Tallahassee, Leon County Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1980. COPIES FURNISHED: Stephen A. Walker, Esquire South Florida Water Management District Post Office Box V West Palm Beach, Florida 33402 Ross A. McVoy, Esquire 318 North Monroe Street Post Office Box 669 Tallahassee, Florida 32302 Terry F. Lenick, Esquire Assistant County Attorney County of Lee Post Office Box 398 Fort Myers, Florida 33902 =================================================================
Findings Of Fact Petitioner has a lease on a 160-acre tract of land along the northern boundary of Palm Beach County which has been zoned and used for several years to mine rock used in local road building operations. This tract of land is surrounded on the east, south and west by some 1,000 acres of land owned by Intervenor, Vanguard Farms. The Vanguard Farms property is used to grow citrus and sugarcane. The geology of the area in the vicinity of this application is such that some three feet of Everglades top soil overlies the limestone. The land surface is about fifteen (15) feet NGVD and the water level table fluctuates from twelve (12) to fourteen (14) feet NGVD for the dry and wet seasons. The Vanguard Farms property, which surrounds Petitioner's property in Palm Beach County, is a wet area bordered on the west by Lake Okeechobee and on the east by high ground water elevation. The area has an excess of rainfall over evapotranspiration and excess water will always be generated. In order to render Vanguard Farms arable it is necessary to drain the property and pump excess water from the land. The existing rock pit is some 6.7 acres in area. In order to economically mine rock from this pit it is necessary to remove stable overburden and expose the limerock to provide a stable platform on which the mining equipment can be operated. Since the water table is generally above the top of this limerock, it is necessary to remove water from the pit to expose the rock to be quarried. During earlier operations water from the pit dewatering was pumped into a canal which flowed onto intervenor's property. In the application now under consideration, no water from the dewatering operation will be pumped off the 160 acres controlled by Petitioner. A 25-acre holding pond has been constructed on this site as well as a 9-acre overflow pond. The holding pond was constructed by piling the overburden, and possibly some limerock, in a rectangular shape some ten feet above the surface (25 feet NGVD). This material with which this 10-foot high levee is formed was excavated with a dragline and shaped with a tractor. Condition 28, of the conditions proposed by Respondent for the grant of this application, requires all dikes, levees and berms behind which water is to be retained to be inspected for structural adequacy. A report of such inspection and steps necessary to correct the deficiencies noted shall be submitted, and the report is to be signed and sealed by a Florida registered professional engineer. Perimeter ditches on the north, south and east sides of Petitioner's lands will intercept seepage from the retention pond and surface waters flowing onto this property. These perimeter ditches are connected to the rock pit to which such waters will flow. Water moving westward across the property will be intercepted by the rock pit. Without the rock pit excess water generated in this area will flow onto Vanguard's adjacent land. This condition will exist when the pit is not in operation. However, when the pit is in operation, the water will be retained on Petitioner's property by those limiting conditions requiring the maintenance of water level elevation in the perimeter ditch to be kept either equal to or below the water level elevation of Vanguard Farms. Under this condition, all water will be routed between the pit and retention pond. Conditions of the permit which Respondent proposes to issue include that the water level in the retention pond not exceed 18.5 feet NGVD, that the holding pond be interconnected with the overflow pond, that the water level in the perimeter ditches be maintained by use of a flashboard riser at 10.8 feet NGVD, that dewatering operations cease upon notification by District staff of any adjacent property owners experiencing water-related problems, and that a direct connection between holding pond and rock pit be established for emergency discharge of water from the holding pond back into the rock pit.
The Issue Whether Rule 27G-1.06(2) and Rule 27G-1.08(4), Florida Administrative Code, or either of them, is an invalid exercise of delegated legislative authority?
Findings Of Fact The parties have stipulated that Fairfield Communities, Inc. (Fairfield) has the requisite standing to challenge the rule provisions at issue and that Friends of Fort George, Inc., (Friends), Florida Wildlife Federation (FWF) and Florida Audubon Society (Audubon) have standing to participate as intervenors in support of these rule provisions. The Florida Land and Water Adjudicatory Commission (FLWAC) is the state agency that promulgated the challenged rules. The Fort George DRI case, No. 86-4127, began on August 1, 1986, when the Department of Community Affairs took an appeal of the development order entered by the City of Jacksonville on June 12, 1986 on grounds The MLUP does not accurately show or locate the DER jurisdictional line on the western side of the island from which buffer areas required by the ADO are to be measured . . . The MLUP does not properly or accurately depict or locate buffer areas surrounding the sloughs on the western side of Fort George Island. Exhibit B to the Prehearing Stipulation. Together with others, the Intervenors in the present case filed, in the Fort George DRI case, No. 86-4127, a motion to intervene as of right and request for consideration of additional issues on August 7, 1986. The intervenors in No. 86-4127 sought consideration of a wide range of issues in the Fort George DRI case, including questions concerning Blue Pond, the perimeter buffer zone, the interior habitat, weirs, berms, dikes and hydraulic connections, the adequacy of the water supply, the effect of the Game and Fresh Water Fish Commission's disapproval, the placement of various boundaries, and whether "Fairfield has failed to provide adequate protection of the microclimate and ecology of the Rollins Bird and Plant Sanctuary as mandated by the ADO . . ." Exhibit C to the Prehearing Stipulation. In filing their motion to intervene as of right and request for consideration of additional issues in No. 86-4127, Friends, Audubon and FWF expressly relied on Rule 27G-1.06, Florida Administrative Code. The portion under challenge here provides: (2) Motions to intervene filed with the Commission within 30 days of the filing of a notice of appeal may request the Commission to consider issues raised in the record below but not raised by the parties to the appeal. Rule 27G-1.06, Florida Administrative Code. In the order of transmittal, entered in No. 86-4127 on October 15, 1986, FLWAC denied consideration of every issue raised by the intervenors, except for the issue concerning the Rollins Bird and Plant Sanctuary, and added a related issue, also concerning the Rollins Bird and Plant Sanctuary, citing Rule 27G- 1.08, Florida Administrative Code. The portion of that rule under challenge here provides: Within 60 days of receipt of a notice of appeal, the Commission shall meet to review the issues raised by the parties. If the Commission determines that an issue of statewide or regional importance was not raised by the parties but is necessary to its disposition of the appeal, the Commission shall specify said issue and shall specify whether the issue shall be the subject of review based on the record made below, additional evidence or a combination thereof. New issues shall not be raised by the parties or other persons after this Commission meeting. At this meeting, the Commission may also dispose of procedural motions, including motions to intervene, which have been filed within 30 days of the filing of the notice of appeal. Rule 27G-1.08, Florida Administrative Code. Fairfield, as the applicant for the development order in No. 86- 4127, questions FLWAC's authority to promulgate rules that allow FLWAC to consider issues not raised by the party who took the DRI appeal, whether sua sponte or on motion of an intervenor.
The Issue The issue presented in this proceeding is whether the Petition to Expand the Boundaries of the Bella Collina Community Development District (Petition) meets the applicable criteria in chapter 190, Florida Statutes (2018), and Florida Administrative Code Chapter 42-1. The purpose of the local public hearing was to gather information in anticipation of quasi-legislative rulemaking by the Florida Land and Water Adjudicatory Commission (Commission).
Conclusions This proceeding is governed by chapters 120 and 190 and chapter 42-1. The proceeding was properly noticed pursuant to section 190.005(1)(d) by publication of an advertisement in a newspaper of general paid circulation in Lake County of general interest and readership, once each week for the four consecutive weeks immediately prior to the hearing. Petitioner has met the requirements of section 190.005(1)(a) regarding the submission of the Petition and satisfaction of the filing fee requirements. Petitioner bears the burden of establishing that the Petition meets the relevant statutory criteria set forth in section 190.005(1)(e). All portions of the Petition and other submittals have been completed and filed as required by law. All statements contained within the Petition are true and correct. The expansion of the District is not inconsistent with any applicable element or portion of the State Comprehensive Plan or the effective County Comprehensive Plan. The area of land within the Expanded District remains of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. The Expanded District remains the best alternative available for delivering community development services and facilities to the area that will be served by the Expanded District. The community development services and facilities of the Expanded District will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. The area to be served by the Expanded District remains amenable to separate special-district government. Based on the record evidence, the Petition satisfies all of the statutory requirements and, therefore, there is no reason not to grant Petitioner's request for expanding the boundaries of the existing District, as requested by Petitioner. DONE AND ENTERED this 7th day of March, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 2019. COPIES FURNISHED: Cynthia Kelly, Secretary Florida Land and Water Adjudicatory Commission Room 1802, The Capitol Tallahassee, Florida 32399-0001 Nicholas A. Primrose, Esquire (Attorney for the Commission) Executive Office of the Governor Suite 209, The Capitol 400 South Monroe Street Tallahassee, Florida 32399-0001 (eServed) Molly Weller, Agency Clerk Transportation and Economic Development Policy Unit Room 1802, The Capitol Tallahassee, Florida 32399-0001 (eServed) Andrew C. d'Adesky, Esquire Latham, Shuker, Eden & Beaudine, LLP Suite 1400 111 North Magnolia Avenue Orlando, Florida 32801-2367 (eServed) Patricia R. McConnell, Esquire Latham, Shuker, Eden & Beaudine, LLP Suite 1400 111 North Magnolia Avenue Orlando, Florida 32801-2367 William Chorba, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
The Issue The central issue in this case is whether the Petitioners are entitled to an exemption pursuant to Section 373.406(2), Florida Statutes.
Findings Of Fact Based upon the stipulations of the parties, the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The District is a public corporation in the state of Florida existing by virtue of Chapter 25270, Laws of Florida 1949, and operating pursuant to Chapter 373, Florida Statutes, and Chapter 40E, Florida Administrative Code, as a multipurpose water management district, with its principal office in West Palm Beach, Florida. The Petitioner, London Creek Associates, is a Florida general partnership with the address 4545 Pleasant Hill Road, Suite 205, Kissimmee, Florida 34759. The Petitioner, Louis Fischer, is a general partner of London Creek Associates who resides on the property which is the subject of this case. The subject property is commonly known as London Creek Ranch. The subject property is located in Sections 1, 6, and 7, Township 28 South, Range 29 East, Polk County, Florida. The subject property is located within the geographic boundaries of the District's jurisdictional territory. The subject property is owned in fee simple by London Creek Associates. At all times material to the allegations of this case, London Creek Associates has been such owner. In October, 1989, acting in his own behalf and on behalf of London Creek Associates, Louis Fischer contracted with a road excavator to build a road through the subject property. The location of the road was selected as the route which would require the least amount of clearing and the crossing of the least amount of water or swamps. That route was to connect an existing right- of-way and was to traverse the subject property ending at or near the residence occupied by Mr. Fischer. The road was approximately two miles long, tied into a preexisting road for a portion of its length, and crossed about 2000 feet of wetlands. Prior to the construction of the road, neither Mr. Fischer nor London Creek Associates nor anyone associated with the construction project conducted any engineering studies regarding the road or the ditching associated with its construction. Prior to the construction of the road, neither Mr. Fischer nor London Creek Associates nor anyone associated with the construction project conducted any hydrologic studies regarding the road or the ditching associated with its construction. Prior to the construction of the road, neither Mr. Fischer nor London Creek Associates nor anyone associated with the construction project conducted any hydraulic studies regarding the road or the ditching associated with its construction. In constructing the road, materials were excavated from along the sides of the route and placed along the roadbed in order to elevate the road above natural grade. As a result, a series of ditches were created along the sides of the road. Additionally, fill material was brought in from off-site and was used to raise the road above the natural grade. Some of the fill material for the road construction was taken from wetland areas located on the subject property. A portion of the road and ditches were constructed through wetlands on the subject property. The construction of the road altered the topography of the subject property by creating a road at an elevated grade above the natural grade. During the construction of the road, a borrow pit in a wetland area was dug. That pit has since been filled. During the construction of the road, wetland areas were cleared in order to align the road. The road was completed in March, 1990. Petitioners, Louis Fischer and/or London Creek Associates, are responsible for all acts associated with the construction of the road. Prior to the construction of the road across Petitioner's property, neither Louis Fischer nor London Creek Associates applied for, or received, a surface water management permit from the District. On March 20, 1990, the District issued a notice of violation to Louis Fischer regarding the subject road. On August 6, 1990, the District issued an administrative complaint and order 90-29 regarding the subject road. On August 23, 1990, pursuant to the notice of rights attached to order 90-29, London Creek Associates filed a petition pursuant to Section 120.57, Florida Statutes, objecting to the administrative complaint and requested a formal hearing. London Creek Associates' position has been that it is exempt from permitting by virtue of Section 373.406(2), Florida Statutes, which grants agricultural exemptions. On February 25, 1991, the FOTH were granted leave to intervene in order to participate in these proceedings. Certain "works" constructed by London Creek Associates on the subject property are hydrologically connected to wetlands. The road which is at issue in this case is between 12 and 14 feet wide and is elevated above natural grade from 2 to 3 feet. Exact measurements of the road's elevation have not been performed. However, it is sufficient to say that the road will not likely become submerged by normal rainfall events. Three 36 inch concrete culverts, two 12 inch corrugated pipe culverts, and one 18 inch corrugated pipe culvert have been installed to provide drainage under the road. These culverts allow water to overflow ditches from one side of the road to the other side of the road. Thus, the road only temporarily dams water flow. Louis Fischer is the managing partner of London Creek Associates and as such controls the day-to-day operations of that partnership. Mr. Fischer manages London Creek Ranch and oversees its cattle and timber enterprises. Prior to the construction of the road and, in anticipation of future timber cuts, London Creek Ranch has engaged in silviculture activities on the subject property. The road grade and construction will assure that timber vehicles will have access to the property and will be able to remove large loads without fear of impasse. It is expected that the partnership will continue to derive a portion of its income from timber as it has in the past. Prior to the construction of the road and, in anticipation of future efforts, London Creek Ranch has been used for cattle grazing. Cattle grazing leases have generated income to the partnership and it is expected that they will continue to do so in the future. The road grade and construction will assure that cattle trailers will have access to the property during all seasons. At all times material to the allegations of this case, London Creek Ranch has received an agricultural use classification from the Polk County Property Appraiser's Office. That classification entitles the subject property to be assessed ad valorem taxes as an agricultural concern. At all times material to this case, the subject property has been used for agricultural and silvicultural purposes. No other use, inconsistent with agricultural and silvicultural use, has been proposed for the subject parcel. Residences occupied by Mr. Fischer and the ranch foreman are consistent with its agricultural use. The construction of the road which is at issue will assure that the agricultural and silvicultural activities of the Petitioners will not be foiled by inadequate access. The road at issue is consistent with the practice of the uses to which it is being employed. While it may be superior to some "cattle trails," the road is not so improved as to suggest its use is inconsistent with its intended utilization. Further, the construction of the road was not for the sole or predominant purpose of impounding or obstructing surface waters. Surface waters are only temporarily impounded or obstructed by the road. The culverts and ditching associated with the road operate to maintain the natural surface water flows through the area. FOTH is a Florida corporation whose members hunt, fish, and recreate on the properties adjacent to the London Creek Ranch. The FOTH membership is concerned about the preservation of the London Creek areas and oppose development of those properties. FOTH's incorporation and its opposition to the road constructed by the Petitioners coincided with one another. The District has promulgated no rules or has adopted no written policies interpreting Section 373.406(2), Florida Statutes.
Recommendation Based on the foregoing, it is RECOMMENDED: That the South Florida Water Management District enter a final order granting the Petitioners' exemption pursuant to Section 373.406(2), Florida Statutes. DONE and ENTERED this 23rd day of October, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1991. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONERS: The first sentence of paragraph 1 is accepted; the remainder is rejected as irrelevant or contrary to the weight of the evidence. Paragraphs 2 through 5 are accepted. Paragraph 6 is rejected as it does not make sense. Paragraphs 7 through 32 are accepted. With the deletion of the words "guaranteed legal" which are irrelevant, Paragraph 33 is accepted. Paragraph 34 is rejected as irrelevant. The Petitioners or any entity claiming an exemption pursuant to Section 373.406(2), Florida Statutes, are not required to show that the access claimed is the only access to the property or that another access is less desirable. With the deletion of the word "sole" paragraph 35 is accepted. Paragraphs 36 through 42 are accepted. Paragraph 43 is rejected as irrelevant. Paragraph 44 is accepted. Paragraphs 45 and 46, including its subparts, are accepted. Paragraph 47 is rejected as argumentative and irrelevant. Paragraph 48 is rejected as argumentative or contrary to the weight of the evidence. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DISTRICT: Paragraphs 1 through 5 are accepted. With the deletion of the word "fill" as it is used before the word "road," paragraphs 6 through 11 are accepted. The District has identified the road in this case as a "fill road" but it is for the purposes of all applicable statutes or rules or policies articulated herein a "road." It is not disputed that fill materials were placed on the roadbed to elevate the road surface above the natural grade. Semantics aside, the road is a road. "Fill" is rejected as irrelevant or contrary to the law applicable to this case. Paragraph 12 is rejected as irrelevant. With the deletion of "fill" (see comment above), paragraph 13 is accepted. Paragraph 14 is rejected as irrelevant or argumentative. Paragraph 15 is rejected as irrelevant. Paragraph 16 is rejected as irrelevant. Paragraph 17 is rejected as irrelevant. Paragraph 18 is accepted with the deletion of the word "fill" as indicated above. Paragraph 19 is rejected as comment, recitation of testimony or irrelevant. Paragraph 20 is rejected as irrelevant or argumentative. Paragraph 21 is rejected as argument, recitation of testimony or contrary to the weight of the evidence. Paragraph 22 is rejected as recitation of testimony or contrary to the weight of the evidence. With regard to paragraph 23, it is accepted that neither Mr. Fischer nor London Creek Associates owns cattle and that their cattle efforts stem from allowing others to graze on the ranch lands; otherwise rejected as argumentative, irrelevant, or contrary to the weight of the credible evidence. With regard to paragraph 24, it is accepted that Petitioners have received revenues from cattle and timber efforts otherwise the paragraph is rejected as irrelevant. The first sentence of paragraph 25 is rejected as irrelevant. The second sentence of paragraph 25 is accepted. The remainder of the paragraph is rejected as contrary to the weight of the evidence. Paragraph 26 is accepted. Paragraph 27 is rejected as irrelevant. Paragraph 28 is accepted with the deletion of the word "fill." Paragraph 29 is accepted. Paragraph 30 is accepted. Paragraph 31 is accepted. Paragraph 32 is rejected as irrelevant. With the deletion of the word "fill," paragraphs 33 through 35 are accepted. The first sentence of paragraph 36 is rejected as irreevant. The remainder of the paragraph is rejected as contrary to the weight of the evidence. Paragraph 37 is accepted. Paragraph 38 is rejected as argumentative or irrelevant or contrary to the weight of the evidence. Paragraph 39 is rejected as irrelevant or argumentative. Paragraph 40 is rejected as recitation of testimony or irrelevant. Paragraph 41 is rejected as recitation of testimony. Paragraph 42 is rejected as contrary to the weight of the evidence. The road in dispute may be more passable than "cattle trails" or less improved roads but its use is not inconsistent with agricultural and silvicultural purposes. Paragraph 43 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 44 is rejected as irrelevant. Paragraph 45 is rejected as irrelevant. It is accepted that the road in dispute provides access to both Mr. Fischer's and his foreman's homes. That it also provides access for bona fide agricultural and silvicultural purposes is why it does not require a permit. Paragraph 46 is accepted. With the exception of the last sentence, paragraph 47 is accepted. The last sentence is rejected as contrary to the weight of the evidence. Paragraph 48 is rejected as argumentative or irrelevant. It is not disputed that the road is above the natural grade. Paragraph 49 is accepted with the deletion of the word "fill." Paragraph 50 is rejected as argumentative or attempt to recite testimony. In the alternative the paragraph is rejected as irrelevant as to whether the road has been used for timber harvesting since future harvesting will require the road. Paragraph 51 is rejected as irrelevant. The issue in this case is whether the road was constructed for the sole or predominant purpose of impounding or obstructing surface waters. Paragraph 52 is accepted. Paragraph 53 is rejected as irrelevant or a statement of fact contrary to the weight of the credible evidence presented. It has not been disputed, however, that the Petitioners sought to construct a road that would be passable during all seasons for the purposes expressed herein. Paragraph 54 is rejected as irrelevant or contrary to the weight of the evidence or a recitation of testimony not fact. Paragraph 55 is accepted to the extent that it suggests surface waters flowed across this parcel in the areas where the road was constructed and that further the culverts assure that the flow remains the same as prior to the road. Otherwise rejected as irrelevant or recitation of testimony. Paragraph 56 is accepted. Paragraph 57 is rejected as argumentative, comment on testimony or irrelevant; see comment re: paragraph 55. Paragraph 58 is rejected as contrary to the weight of the credible evidence. With regard to paragraph 59 it is accepted that Mr. Ady correctly described the location and size/number of culverts; otherwise, rejected as irrelevant. Paragraph 60 is rejected as contrary to the weight of the evidence. Paragraph 61 is accepted. Paragraph 62 is rejected as argument or contrary to the weight of the evidence or irrelevant given the promulgated rules, policies and applicable statutes in effect at the times material to this case. Paragraph 63 is rejected as comment, recitation of testimony or contrary to the weight of the evidence. Paragraph 64 is rejected as contrary to the weight of the evidence or recitation of testimony. Paragraph 65 is rejected as contrary to the weight of the evidence and argumentative. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE INTERVENOR: The findings of fact submitted by FOTH mirror those submitted by the District and have been addressed above. Those paragraphs not previously considered are identified below. The first sentence of paragraph 45 is accepted; the remainder is rejected as irrelevant. Paragraph 46 is accepted. Paragraph 47 is accepted. Paragraph 48 is rejected as contrary to the weight of the evidence. Paragraph 49 is rejected as contrary to the weight of the evidence. Paragraph 50 is accepted. Paragraphs 51 and 52 are accepted. Paragraph 53 is rejected as argumentative or irrelevant. COPIES FURNISHED: Tilford Creel Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416 John J. Fumero Associate Attorney South Florida Water Management District 3303 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416-4680 Joseph W. Landers, Jr. Landers & Parsons Post Office Box 271 Tallahassee, Florida 32302 Carl W. Hartley, Jr. HARTLEY & WALL Suite 2810, Sun Bank Tower 200 S. Orange Avenue Post Office Box 2168 Orlando, Florida 32802
Findings Of Fact Based on the stipulations of the parties, on matters officially recognized, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. Petitioner, The Santa Fe Lake Dwellers Association, Inc. (SFLDA), is a Florida corporation, not-for-profit, which evolved from a voluntary association of area families contemporaneously with and in reaction to Intervenor's first activities on site. Its members are mostly riparian residents and owners although, it does have a number of members who reside in surrounding areas. SFLDA was formed to protect Lake Santa Fe. The purpose of the association is to protect natural resources and to inform those conducting activities around the lake to abide by rules, regulations, and procedures. The President of SFLDA, Harold Hill, expressed particular concern about protection of lifetime investments in property on the lake and property values. SFLDA has approximately 380 "family group" members, of whom approximately one-half live on Lake Santa Fe or on canals to the lake. Mr. Hill and other members of SFLDA use Lake Santa Fe waters for swimming, fishing, and recreation. Use of the waters of Lake Santa Fe and Little Lake Santa Fe is not restricted to property owners who abut the lake. There is public access to the lakes and they can be used by anyone who has a boat. Intervenor, Santa Fe Pass, Inc. (SFP), is a Florida corporation, which owns the property at issue. SFP acquired fee title to the land in its own name on April 28, 1978. Some or all of the present share holders in SFP purchased the land in the name of a trustee on January 9, 1976. The property at issue is a development property of approximately 110 acres located in Alachua County on a peninsula that almost separates Lake Santa Fe from Little Lake Santa Fe and is commonly known as the Santa Fe Pass. The Santa Fe Lakes are navigable and are classified as Outstanding Florida Waters under Chapter 17-4.304(4)(i), Florida Administrative Code, and are surrounded by Alachua, Clay, Bradford, and Putnam Counties. On November 13, 1978, a site visit was conducted on the subject property for purposes of establishing the dredge and fill jurisdictional limits of DER and the U.S. Army Corps of Engineers. Those present on the site inspection that day included Melvin H. Rector, the DER representative; another DER employee; Don Gowan, representative for the Corps of Engineers; William B. Watson, III, a co-owner; Boone Kuersteiner, an attorney for SFP; and Benjiman Breedlove, environmental consultant for SFP. At the November 13, 1978, site visit, DER made a determination of the extent of its dredge and fill jurisdiction under Section 403.817, Florida Statutes, in the area of the subject property. This determination was depicted and memorialized on an aerial photograph of the site and was signed by those present, including Mr. Rector on behalf of DER. Mr. Rector, the DER representative on site on November 13, 1978, used the following method to establish the location of the limit of DER's jurisdiction: Jurisdiction was based on the dominance of certain vegetative species listed in Rule 17-4, Florida Administrative Code, as it existed on that date. The listed species that were dominant in the jurisdictional area were a fringe of grass called maiden cane along the lake, and further landward, two forested species, pond cypress and swamp tupelo. Dominance was based on factors of whether listed species versus non-listed species covered a greater aerial extent in the canopy cover, made up more than 50 percent of the species by number, and had a greater biomass or weight. At that time DER had no authority to use soil types to establish jurisdiction. The line set by DER was based only on the vegetative index and not on the ordinary high water line. The filling which had occurred on the site prior to November 13, 1978, had no impact on where DER located its jurisdictional line, nor did it impair the ability of DER to determine where the line should be located. Any removal of canopy or subcanopy species landward of the line prior to that date also did not affect placement of the line. If no filling had occurred on Santa Fe Pass prior to November 13, 1978, DER's representative Rector would have located the jurisdictional line in the same place as he did on November 13, 1978. An abandoned powerline easement runs across the subject SFP property from the southwest area of the property to the northeast portion of the property, where it meets the lake. Prior to any filling by SFP or its immediate predecessor in interest, the easement area had been cleared of trees, and fill had been placed in some areas along the easement strip. At the time of the November 13, 1978, jurisdictional determination, the easement strip was dry and it was possible to drive a car down it to the lake. The easement strip was not paved, but had dirt and vegetation on its surface. Portions of the powerline easement strip were filled prior to January of 1975. There was no new fill on the powerline easement strip at the time of the November 13, 1978, jurisdictional determination. At that time, portions of the powerline easement strip contained old fill material covered by upland species of vegetation. On November 13, 1978, DER concluded that, based on vegetation in and adjacent to the powerline corridor on Santa Fe Pass, the corridor was entirely outside DER's jurisdiction. A low area or depression, also referred to as a pond, is located in the northeasterly portion of the subject SFP property, southwest of the portion of the powerline easement strip that extends into the lake. No fill was placed between the depressed area or pond and the lake prior to November 13, 1978. (Shortly after that date, fill was placed in that area.) There was no other physical alternation of the area near the depression or pond prior to the date of the jurisdictional determination. At the time of the jurisdictional determination, the depression or pond was separated from the lake by a natural low berm, the borders of which were vegetated and undisturbed. The depression or pond was not exchanging water with the lake at that time, although at other times there has been an occasional exchange of waters between the two. In addition, jurisdictional vegetative species were not dominant in the depression or pond area at the time of the jurisdictional determination. On November 13, 1978, DER did not assert jurisdiction over the low area or pond in the northeast section of the property because it was not connected to waters of the state and was separated from the lake by a low natural berm. DER's representative Rector inspected the jurisdictional line numerous times after November 13, 1978, including an inspection of the line as marked by the owner's consultant to make sure the line was accurate. Other DER representatives inspected the line in May of 1979 and also thought the line or the portions of the November 13, 1978, line they inspected were accurate. On June 11, 1979, DER representative David Scott wrote SFP that, after a recent DER inspection, there were no problems with the present DER jurisdictional line. Since the DER line was established on November 13, 1978, SFP has relied on its location to develop the project, to conduct filling activities landward of the location of the line, to create a site plan and plat, and to make sales representations to potential buyers. From the owner's standpoint, the purpose of establishing the line was to determine where it would and would not need DER dredge and fill permits to develop the land. Landowners use DER jurisdictional determinations for planning purposes. SFP has expended more than $100,000 for development reasons in good faith reliance on the line's location. In conjunction with 1984 revisions to Chapter 403, Florida Statutes, DER adopted Rule 17-4.022(8), Florida Administrative Code. This was a "grandfathering" rule provided for landowners who had had DER jurisdictional determinations done, so that they could continue planning with a previously fixed jurisdictional line. On January 8, 1985, SFP requested that DER validate the 1978 jurisdictional determination for the subject SFP property in accordance with Florida Administrative Code Rule 17-4.022(8). Attached to this request was the aerial photograph signed by DER employee Rector and others upon which the November 13, 1978, DER jurisdictional determination was graphically displayed. On July 9, 1985, DER issued a letter validating the November 13, 1978, jurisdictional determination under Rule 17- 4.022(8), Florida Administrative Code. Exhibit 1 to that letter was a validated version of the aerial photograph depicting the 1978 determination. The validated line is identical to the line established on November 13, 1978. DER staff followed normal procedures in validating the Santa Fe Pass line and, having done so, concluded that all validation criteria were met. On March 11, 1986, DER notified SFLDA by certified mail that on July 9, 1985, DER had validated its November 13, 1978, jurisdictional determination on the SFP property. SFLDA timely requested an administrative hearing on March 19, 1986. Although some SFLDA officers and members had conversations with DER personnel between July 9, 1985, and March 11, 1986, none of those conversations was sufficient to provide SFLDA with a clear point of entry into the process. In sum: The totality of the credible evidence supports the ultimate finding of fact that the DER jurisdictional line established on November 13, 1978, was accurately established and SFP is entitled to have that line validated.
Recommendation Based on all of the foregoing, it is recommended that the Department of Environmental Regulation issue a Final Order validating the jurisdictional line as determined on November 13, 1978. DONE AND ENTERED this 27th day of October, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1047 The following are the-specific rulings on each of the proposed findings of fact proposed by each of the parties. By way of preface it should be noted that the evidence in this case consists of three days of testimony by numerous witnesses, some expert and some lay, with many different points of view. Some of the witnesses had an opportunity to view the subject property carefully on numerous occasions over a period of several years. Others only viewed it casually once or twice. Some gave the property a studied, scientific examination. Others gave it only a casual, curious glance. Some of the witnesses have an interest in what happens to the property. Others do not. Some witnesses were able to relate what they had observed with precision and detail. Others were somewhat vague, uncertain, and ambiguous. These many differences have resulted in a record which contains a great deal of conflicting factual testimony as well as a great deal of conflicting expert opinion testimony. The record also contains a great deal of what might best be described as "vague" testimony to which little weight has been given. In making the findings of fact in this Recommended Order and in making the specific rulings on the proposed findings which follow, I have given careful consideration to the testimony of all of the witnesses who presented testimony relevant to the issues in this case and have resolved the conflicts in the testimony by careful consideration of matters such as those summarized in the preceding paragraph, giving special consideration to each witness' opportunity to observe the property, the timing of his or her observation, the ability of the witness to perceive and understand what was being observed, and the ability of the witness to remember and recount what had been observed. In resolving the conflicts in the testimony I have also taken into consideration such matters as the extent to which the testimony was or was not consistent with other evidence, the extent to which it was or was not consistent with logic and common sense, and the extent to which the witness' interest (or lack of interest) might have colored his or her ability to objectively observe and recount the observation. Rulings on Petitioner's Proposed Findings Paragraphs 1,2, and 3: Accepted in substance, with the exception of the last sentence of Paragraph 3, which sentence is rejected as irrelevant or as constituting unnecessary, subordinate detail. Paragraph 4: Accepted. Paragraph 5: Rejected as irrelevant or as constituting unnecessary, subordinate detail. Paragraph 6: Accepted in substance, but with most of the details deleted as unnecessary and subordinate. Paragraph 7: Accepted in substance, for the most part, but with many unnecessary and subordinate details deleted. The sentence beginning on the ninth line of page 5 and the last sentence of this paragraph are rejected as irrelevant. Paragraph 8: This paragraph is rejected as subordinate and unnecessary. (While the witness Rector's current status as a private consultant to one of the parties is an underlying consideration in evaluating the credit to be given to his testimony [and has been considered in that regard), such status is nevertheless subordinate to the real issues in this case. The witness' education, experience, and demeanor while on the witness stand were also carefully considered, but if all of these matters were to become the subjects of findings of fact, the fact-finding process might never end and the significant facts might become forever lost in a morass of trivia.) Paragraph 9: Accepted in substance, but with many details deleted as unnecessary and subordinate. Paragraph 10: The first two sentences are rejected as irrelevant. The remainder of this paragraph is rejected as constituting unnecessary and subordinate details as well as being more in the nature of a summary of fragments of the testimony than a proposed finding of fact. Relevant findings about the "pond" are included in this Recommended Order. Paragraph 11: This paragraph is rejected as constituting a commentary upon a portion of the evidence or as constituting argument about the probative value of an item of evidence, rather than being a proposed finding of fact. To the extent this paragraph does contain material which could be regarded as proposed findings, they are subordinate and unnecessary details. Paragraph 12: Accepted in substance, but with many details deleted as unnecessary and subordinate. Unnumbered paragraph following Paragraph 12: Rejected as irrelevant and as constituting subordinate unnecessary details. Paragraph 13: Accepted in substance, but with many details deleted as unnecessary and subordinate. Unnumbered paragraph following paragraph 13: First sentence accepted in substance. The remainder of this paragraph is rejected as irrelevant or subordinate and unnecessary details. Paragraph 14: Rejected as constituting irrelevant, subordinate, unnecessary details about the hearing. Unnumbered paragraph immediately following Paragraph 14: The first two sentences of this paragraph and the last sentence of this paragraph are rejected as constituting irrelevant, subordinate, unnecessary details. Most of the remainder of the paragraph is accepted in substance with most details deleted as unnecessary and subordinate. Paragraph 15: Rejected as argument or editorial commentary rather than proposed findings of fact. First unnumbered paragraph following Paragraph 15: This paragraph is rejected as irrelevant and unnecessary details. Second unnumbered paragraph following Paragraph 15: The first sentence is rejected as constituting subordinate, unnecessary detail. The opinion incorporated into the second sentence is rejected as contrary to the greater weight of the evidence. The third sentence is rejected as irrelevant in light of other credible evidence that the area had not been significantly disturbed at the time of the jurisdictional determination. The last sentence is rejected as irrelevant in light of other credible evidence regarding conditions at the time of the jurisdictional determination. Third unnumbered paragraph following Paragraph 15: This paragraph is rejected as irrelevant in light of other credible evidence regarding conditions at the time of the jurisdictional determination. Fourth unnumbered paragraph following Paragraph 15: This paragraph is rejected in part as constituting irrelevant and subordinate details and in part as contrary to the greater weight of the evidence. Paragraph 16: The first two sentences of this paragraph are rejected as subordinate, unnecessary details. The remainder of the paragraph is accepted in substance, but with the deletion of many unnecessary details. Paragraph 17: The first seven sentences of this paragraph are rejected as subordinate and unnecessary. The eighth sentence is rejected as constituting an opinion which is contrary to the greater weight of the evidence. Furthermore, the witness' testimony relative to this opinion comes closer to being in the nature of "maybe" than being in the nature of, "probably." The ninth, tenth, and eleventh sentences are rejected because they constitute irrelevant subordinate details and because the testimony in this regard was not convincing to the extent it conflicts with the testimony of other witnesses. The last three sentences of this paragraph are rejected as being totally irrelevant to any issue in this case. Unnumbered paragraph following Paragraph 17: This paragraph is rejected in part because it consists largely of irrelevant or subordinate and unnecessary details, in part because the testimony upon which it is based was not persuasive, and finally, because much of it is contrary to the greater weight of the evidence. Paragraph 18: The paragraph is rejected as irrelevant and also as in part contrary to the greater weight of the evidence. Paragraph 19: This paragraph is rejected as irrelevant. Paragraph 20: The first sentence is rejected as not supported by competent substantial evidence and as contrary to the greater weight of the evidence. The second and third sentences are rejected as irrelevant or subordinate detail. The last sentence of this paragraph is rejected as irrelevant due to the time of the observations and in part not supported by competent substantial evidence. Paragraph 21: This paragraph is rejected as irrelevant. Paragraph 22: All but the penultimate sentence of this paragraph is rejected as irrelevant and subordinate details. The essence of the penultimate sentence has been included in the findings regarding the "pond." Paragraph 23: This paragraph is rejected. For the most part it consists of irrelevant or subordinate details. To the extent it is consistent with other testimony, it is cumulative. To the extent it is inconsistent with other testimony, it is contrary to the greater weight of the evidence and to a large extent not supported by competent substantial evidence. (It is worthy of note that much of the testimony to which this paragraph relates was substantially discredited on cross-examination.) Paragraph 24: This paragraph is rejected, primarily because it consists of irrelevant or subordinate details, but also because some of those details are not supported by persuasive competent substantial evidence. Paragraph 25: This paragraph (including all of its subparts) is rejected as constituting irrelevant and subordinate and unnecessary details. Paragraph 26: This paragraph is rejected as irrelevant. Paragraph 27: This paragraph is rejected. Many portions of the paragraph consist of irrelevant or subordinate details. The portions containing opinions are rejected as being contrary to the greater weight of the evidence and as not being wholly supported by competent substantial evidence. Rulings on Respondent's Proposed Findings With the exceptions specifically noted below, the substance of all of the findings of fact proposed by the Respondent have been accepted and incorporated into the findings of fact in this Recommended Order. Paragraphs 3, 4, and 7: These paragraphs are rejected as constituting subordinate and unnecessary details. Paragraph 6: The portion reading, ". . . except for a more landward relocation around the area identified as 'Gator Cove,' to include more area," is rejected as contrary to the greater weight of the evidence. Paragraph 8: The portion reading, ". . . except in the area described as Gator Cove," is rejected as contrary to the greater weight of the evidence. Rulings on Intervenor's Proposed Findings Paragraph 1: Accepted. Paragraph 2: Accepted in substance, with some unnecessary details deleted. Paragraph 3: Accepted in substance with the exception second sentence of this paragraph. The second sentence is rejected as being too narrow and incomplete a statement. The findings in this Recommended Order contain more complete findings regarding the "pond." Paragraph 4: This paragraph is rejected as constituting subordinate and unnecessary details. Paragraph 5: Accepted. Paragraph 6: Accepted. Paragraph 7: Accepted with the exception of the last sentence of this paragraph, which is rejected as irrelevant or as constituting unnecessary subordinate detail. Paragraph 8: Accepted. Paragraph 9: Accepted. Paragraph 10: Accepted. Paragraph 11: Accepted. Paragraph 12: Accepted. Paragraph 13: Accepted. Paragraph 14: Accepted. Paragraph 15: Rejected as irrelevant or as constituting subordinate and unnecessary details. Paragraph 16: Accepted. Paragraph 17: Accepted in substance with some unnecessary details deleted. Paragraph 18: Rejected as constituting primarily subordinate and unnecessary details. this regard it should be noted that Mr. Tyler's opinion that a portion of the jurisdictional line is misplaced has been rejected as contrary to the greater weight of the evidence.) Paragraph 19: First sentence is accepted. The remainder, although essentially accurate, is rejected as cumulative. COPIES FURNISHED: Timothy Keyser, Esquire Post Office Box 92 Interlachen, Florida 32048 Bradford L. Thomas, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Frank E. Matthews, Esquire Elizabeth C. Bowman, Esquire HOPPING BOYD GREEN & SAMS Post Office Box 6526 Tallahassee, Florida 32314 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 =================================================================
The Issue The issue is whether the Suwannee River Water Management District (“the District”) should renew Seven Springs Water Company’s (“Seven Springs”) water use permit.
Findings Of Fact Based on the evidence adduced at the final hearing, the record as a whole, and matters subject to official recognition, the following Findings of Fact are made: The Parties The District is a water management district created by section 373.069(1), Florida Statutes. It is responsible for conserving, protecting, managing, and controlling water resources within its geographic boundaries. See § 373.069(2)(a), Fla. Stat. The District, in concert with the Department of Environmental Protection, is authorized to administer and enforce chapter 373, including statutes pertaining to the permitting of consumptive water uses. The District also administers and enforces rules set forth in Florida Administrative Code Chapter 40B. Seven Springs is a fourth generation, family-owned company. Through an exclusive water sales and extraction agreement and subsequent amendments thereto, Seven Springs has the right to withdraw water from wells1 located on 7300 Northeast Ginnie Springs Road, High Springs, Florida 32643-9102. The water withdrawn by Seven Springs is piped to the adjacent High Springs bottled water facility. Both of the aforementioned properties are located in Gilchrist County and within the District’s boundaries. 1 Groundwater is withdrawn from two 10-inch diameter production wells. A third production well is proposed and would replace one of the aforementioned wells once placed into service. Seven Springs’ existing water use permit was originally issued by the District in 1994. On March 15, 2019, Seven Springs submitted its application for a five-year renewal of that permit. In 1996, the property where the High Springs bottled water facility is located was sold by Seven Springs to AquaPenn. The parties executed a contract making Seven Springs the exclusive provider of water to the bottled water facility. The bottling plant was then constructed in 1998. After AquaPenn, the High Springs plant was owned and operated by Dannon, Coca-Cola, Ice River, and now Nestle Waters of North America (“Nestle” or “NWNA”). Each time the High Springs plant was sold, the aforementioned contract with Seven Springs was also sold to the purchaser. Seven Springs has thus been the sole source of spring water for the High Springs plant since its construction in 1998. Seven Springs Applies for a Permit Renewal Seven Springs submitted an application to the District on March 15, 2019, to renew its water use permit. In a section of the application entitled “Water Use Category,” Seven Springs marked a box indicating its intended water use was “commercial/industrial.” The application gave the following examples of commercial/industrial uses: “service business, food and beverage production, cooling and heating, commercial attraction, manufacturing, chemical processing, [and] power generation.”2 Seven Springs included supporting information with its application. With regard to “impact evaluation,” Seven Springs stated that: [n]o increase from the current permitted groundwater withdrawal volumes is requested. The current permitted withdrawal of 420.48 million gallon[s] per year (MGY) and average annual daily rate (ADR) of 1.152 million gallons per day (MGD) represents between 0.6% and 0.9% of the combined 2 That was the only Water Use Category that had any connection to extracting water and piping it to a facility for bottling. The other categories were agricultural, landscape/recreation, mining/dewatering, public supply, environmental/other, institutional, and diversions/impoundments. Ginnie Springs complex flow rate which has been approximated to range between 131 and 191 MGD. For reference, the 2018 Suwannee River Water Management District (SRWMD) permitted groundwater withdrawals within the Ginnie Springs complex springshed for agriculture is approximately 29 MGD which represents between 15% and 22% of the approximated spring flow. Seven Springs identified the “requested water use” by stating “Seven Springs is a bulk water provider to the adjacent bottled water facility. Additional information will be provided upon request.” Seven Springs completed a “Water Balance Worksheet” indicating it planned to withdraw 1.152 mgd from an aquifer and use 1.152 mgd as “bottled water for consumer consumption.” The District issued its first request for additional information (“RAI”) on April 2, 2019, requesting that Seven Springs: [p]rovide the following information in order to justify that the requested beverage processing allocation is [a] reasonable-beneficial [use] and [consistent] with the public interest: A market analysis; A schematic of water uses from the withdrawal point to the facility; and Schedule of construction and completion for any proposed bottling facility expansion The District also asked Seven Springs to provide the following information in order to justify the requested beverage processing demand: A facility water budget, indicating water used for each individual process, potable uses, and fire suppression (if fire suppression does not come from an isolated source; and An account of all water losses and conservation practices throughout the facility. Seven Springs responded via a letter dated June 27, 2019. In response to the District’s request for information justifying that the requested beverage processing allocation is a reasonable-beneficial use and consistent with the public interest, Seven Springs stated, in pertinent part, that: [w]ater sourced from the withdrawal locations P-1 and P-2 is routed via underground pipeline to the 127,992 square foot Nestle Waters of North America (NWNA) High Springs Bottling Facility (Facility) . . . The underground pipeline supplies water only to the NWNA Facility. The NWNA Facility also utilizes two fire wells as shown on Figure 1 for fire suppression supply. As for the District’s request for a facility water budget and an account of all water losses and conservation practices throughout the facility, Seven Springs stated, in pertinent part, that “all but between 3-4% of the requested water withdrawal will be used within the NWNA Facility for bottled water use.” Seven Springs also stated that “[w]ater losses at the NWNA Facility range from 3-4% and are from net fills, cleaning and leaks.” Seven Springs attached a letter from Nestle’s Natural Resources Manager describing the market for bottled water and the Nestle-owned facility to which the water at issue was to be piped: Nestle Waters North America (NWNA) reports to Nestle Waters and is the world’s leading bottled water company with an estimated 11 percent of the world’s market share with 51 bottled water brands while employing nearly 31,000 at over 91 factories as of 2017. NWNA is the third largest non-alcoholic beverage company in the United States by volume and offers 11 bottled water brands. Production volumes at the NWNA High Springs Bottling Facility (Facility) are influenced by a variety of factors including (but not limited to) weather, market demand, the cost of fuel and electricity, and overall production efficiency. As a result, it is difficult to predict a “straight-line” trend for long-term usage volumes over time. However, NWNA continues to project steady, solid market annual growth rates for bottled water in the neighborhood of 2.1% over the next ten years. The Facility is in the process of adding bottling capacity, and expects significant increase in production volumes equal to the requested annual average daily withdrawal volume of approximately 1.152 million gallons of spring water by Seven Springs Water Company. The District issued a second RAI on July 12, 2019, asking Seven Springs to provide the following information: The market analysis and the planned facility expansion must justify the requested groundwater demand of 1.1520 mgd. The highest reported water use at the facility over the last 4 years was 0.2659 mgd. Please provide the data used to calculate the 2.1% projected market growth and a schedule of construction/implementation for the bottling facility expansion reported [in] Attachment A as justification for the requested groundwater use. Please provide a facility water budget, indicating water used for each individual process, potable uses, and fire suppression. The water budget should include water losses throughout the facility. A facility water budget may be submitted in the form of a schematic or table and all water uses must add to the requested groundwater demand of 1.1520 mgd. Seven Springs submitted a response on October 31, 2019, providing the following explanation regarding the projected market growth and the bottling facility expansion: On 28 December 2018, Nestle Waters North America (“NWNA”) purchased the High Springs Plant (“Plant”) that Seven Springs has supplied with spring water by pipeline for over twenty years. See Attachment A to this letter. Seven Springs has contracted with NWNA to continue to supply the Plant with spring water. NWNA has agreed to purchase spring water from Seven Springs up to the permitted allocation of 1.152 million gallons per day (“mgd”) annual average for a period of time that exceeds the requested 5-year permit duration. NWNA is one of the largest non-alcoholic beverage companies in the United States by volume and offers 11 bottled water brands. The industry growth projections for bottled water consumption described in Section III of the attached Seven Springs Report show that demand is enough to utilize the requested/permitted amount with the 5-year duration of the proposed permit. Originally the Plant was designed to have four production lines for bottled water, but only two have been built to date. NWNA began operating the Plant in February of this year and has already completely renovated one production line and has begun work on the second line. When all four lines are up and running, the Plant will be capable of using all of the proposed/permitted annual average daily water allocation of 1,152,000 gallons. A schedule of construction/implementation for the Plant expansion is set forth in Section IV of the attached Seven Springs Report. Seven Springs attached a revised water balance worksheet reaffirming that it planned to extract 1.152 mgd from an aquifer. The District issued a third RAI on November 25, 2019, seeking the following information and citing pertinent portions of the Water Use Permit Applicant’s Handbook (“the Handbook”) that has been incorporated by the District into chapter 40B: In the RAI response dated October 31, 2019, reference was made to a contract between Nestle Waters North America (NWNA) and Seven Springs Water Company. If this contract is a written document (paper or electronic), please provide a copy of the contract (with proprietary or sensitive information redacted, if necessary). The non- redacted portion of the contract [or] other document provided must, at a minimum, demonstrate the asserted reasonable-beneficial use and the parties’ respective obligations to supply and purchase water and the term thereof. [Section 2.3.4.1 (i), A.H.] The reported maximum use at the facility is 0.2659 mdg (SRWMD Water Use Reports for permit # 2- 041-218202). When the 4.7% annual growth rate is applied to the reported use, it does not result in 1.152 mgd at the end of the requested permit duration. Please provide justification for the requested 1.152 mgd allocation. [Subections 2.3.4.1 and (g), A.H.] The proposed capacity of product lines three and four is inconsistent with both the previous reported water use at this facility (0.24 mgd per product line, page 4 of the Geosyntec Report) and the current NWNA business practice (0.183-0.202 mdg per product line) at the Lee, FL facility. Please provide an explanation of why the capacities for product lines three and four are higher than previous business practices. [Subsections 2.3.4.1 (a) and (j), A.H.] The water budget provided (table 1 in section IV of the Geosyntec report) is unclear as to whether the entire requested allocation will be bottled within the facility located at 7100 NE CR340 in High Springs, FL, or if a portion of the requested allocation will be transported in bulk to another facility to be bottled. If bulk water transfer is anticipated, please provide the following information to demonstrate reasonable-beneficial use at the facility receiving the bulk transported water (tanker truck): Whether there is a need for the requested amount of water at the receiving facility; The location of the receiving beverage processing facility; Plan to convey water (quantity and frequency of transport) from withdrawal facility to the receiving beverage processing facility; A site plan for the receiving beverage processing facility; Schedule for completion of construction of the receiving beverage processing facility (if applicable); Contractual obligation to provide water for beverage processing (if applicable); Other evidence of physical and financial ability to process the requested amount at the receiving beverage processing facility; and Documentation (references, studies, contracts, etc.) that support the materials provided for [in] a. through g. (above). [Section 2.3.4.1., A.H.] Seven Springs responded to the third RAI on January 14, 2020. With regard to the contract sought by the District, Seven Springs stated the following: Please note that the District has not previously requested any information concerning a contract between Seven Springs and Nestle Waters North America (“NWNA”) in either the first RAI dated April 2, 2019 (“First RAI”) or the second RAI dated July 12, 2019 (“Second RAI”). Furthermore, Subsection 2.3.4.1, A.H., does not require contractual information [to] be submitted as part of a Water Use Permit application, but rather states that the District will consider certain information, which may include contractual obligations. Seven Springs has previously provided information in accordance with Subsection 2.3.4.1, A.H., demonstrating that the continued use is reasonable, beneficial, and in the public interest. Therefore, pursuant to Section 120.60(1), F.S., the District is not authorized by law or rule to require a copy of the contract for issuance of this straight renewal permit request. The contract contains information that is subject to a non-disclosure agreement between the parties and has propriety business information within it. As we discussed at our meeting with District staff regarding this matter, in order to address the specific terms in the contract that District staff inquired about, the parties have executed a Memorandum of Agreement (“MOA”) summarizing pertinent terms of the contract regarding exclusivity, duration and water quantity. The MOA is attached as Exhibit A. 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 (the “Plant” or “High Springs Plant”), which NWNA owns and operates, up to the full permitted allocation for a period of time that significantly exceeds the requested 5-year permit duration. Seven Springs attached its Memorandum of Agreement (“the MOA”) with Nestle, but the MOA description of the parties’ contract was limited to the following: The term of the Contract extends to 2096. The Contract requires NWNA to purchase from Seven Springs all water pumped, extracted, processed or sold by NWNA through the High Springs Plant, with such amounts only being limited by the average and maximum daily limits set forth in water use permit No. 2-93-00093 (together with any modifications and renewals thereof) (“Permit”). The Contract requires Seven Springs to be the exclusive source for all water bottled at the High Springs Plant.[3] 3 The MOA was amended on May 27, 2020, to add a provision stating that “[a]s long as NWNA meets its payment obligations under the Contract, the Contract requires Seven Springs to exclusively provide all water withdrawn under the Permit to NWNA’s High Springs Plant.” With regard to the request for information regarding product lines 3 and 4 at Nestle’s High Springs plant, Seven Springs stated in the January 14, 2020, letter that: as explained in the Second RAI response, NWNA is expanding the High Springs Plant and has already completed the renovation of one production line and has begun work on the second. As previously explained, when all four (4) lines are up and running, the High Springs Plant will have the production capacity to utilize all of the proposed/permitted annual average daily water allocation of 1,152,000 gallons. NWNA intends on utilizing the entire permitted quantity for its product distribution throughout the proposed five- year permit term and beyond. The justification for the requested 1.152 million gallons per day (“mgd”) is the agreement by NWNA to purchase the spring water from the applicant for the permit duration as well as the expansion of the production lines at the High Springs Plant. * * * To date, NWNA has spent over $40 million on updating, renovating and other work at the High Springs Plant. Additionally, Phase I of the High Springs Plant expansion project, which has not yet been completed, is budgeted to have a projected construction budget of $27.6 million. The large amount of capital invested and expended by NWNA on the Plant is a clear indication that the use is both real and of NWNA’s intent to utilize the full renewal quantities. Seven Springs offered more information regarding the capacity of the High Springs plant: Bottled water lines are designed for each facility and are not purchased “off the shelf,” but designed specifically for each facility and use. Through time, increasingly better and more efficient bottling technology and equipment has been developed. NWNA has already completely renovated the first line at the Plant, as seen by the District staff at the recent site tour, which has increased the efficiency, speed, and production capacity at the Plant. The old line that was replaced could produce approximately 700 bottles per minute, whereas the new line produces up to approximately 1,300 bottles per minute. Current projections indicate that the renovation of the second line will be completed in year 2020. This will complete Phase 1 of the renovation and expansion of the Plant. Phase 2 of the Plant expansion will include two additional lines that will be engineered and custom designed to further meet the capacity and product needs for the facility. In the second RAI response, it was stated that NWNA is expanding the High Springs Plant to add proposed lines 3 and 4, has already completely renovated one production line and begun work on renovating the second. This information was provided in response to RAI item 1 of the Second RAI which, in relevant part, asked for “a schedule of construction/implementation for the bottling facility expansion reported [in] Attachment A as justification for the requested groundwater use.” The increase in capacity in new lines 3 and 4 is planned as part of the Phase 2 expansion. As explained above, each line can be designed for the capacity needed. As for the District’s inquiry about whether a portion of the requested allocation was to be tankered to another facility, Seven Springs stated the following: There is no amount of water included in the water budget for tankering water. Seven Springs (the applicant) does not tanker any water to the Plant; all spring water is conveyed by pipeline to the Plant. Nor does Seven Springs have any plans to tanker water during the term of the permit.[4] Please note that the District did not request any 4 As will be discussed herein, Seven Springs subsequently changed its position on tankering. information regarding bulk transported water (tanker truck) in either its First RAI dated April 2, 2019 or its Second RAI dated July 12, 2019. Finally, Seven Springs concluded its response to the third RAI by stating it was not going to respond to any more requests for information: The information Seven Springs has submitted to the District to date demonstrates reasonable assurance that the Application meets the conditions for issuance for renewal of an existing water use permit at the same allocation of water quantities, and the Application is complete. Some of the questions asked in the Third RAI as indicated are not authorized by law or rule. Therefore, pursuant to Section 120.60(1), F.S., Seven Springs hereby requests that the District deem the Application complete and proceed to process its proposed agency action to renew its water use permit. On March 2, 2020, Warren Zwanka, the Director of the Division’s Resource Management Division, wrote a memorandum to the District’s Deputy Executive Director for Business and Community Services stating that the District’s staff was recommending that the District’s Governing Board deny Seven Springs’ renewal application. In doing so, Mr. Zwanka gave the following explanation: Section 40B-2.361(2), Florida Administrative Code (F.A.C.) provides that all permit renewal applications shall be processed as new permits, and shall contain reasonable assurances that the proposed water use meets all of the conditions for issuance in rule 40B-2.301, F.A.C., and the Water Use Permit Applicant’s Handbook (Handbook). Section 2.3.4.1 of the Handbook contains factors that must be considered for beverage processing water uses. The definition of “beverage processing use” set out in section 1.1 of the Handbook specially includes the sealing of drinkable liquids (including bottled water, as defined in section 500.03(1)(d), F.S.) in bottles, packages, or other containers and offered for sale for human consumption. The application as submitted does not provide reasonable assurances that the proposed beverage processing use is reasonable-beneficial and consistent with the public interest as described in the attached staff report. The staff report referenced by Mr. Zwanka described the Handbook provisions that Seven Springs’ renewal application supposedly failed to satisfy: Section 2.3.4.1(i) requires the District to consider the contractual obligation to provide water for beverage processing. The applicant declined to provide a copy of its contract with NWNA and, instead, provided a memorandum of this contract. This memorandum does not show that [the] applicant is obligated to provide any or all of the requested allocation to NWNA. Therefore, the required reasonable assurance has not been provided. Section 2.3.4.1(j) requires the District to consider evidence of the physical and financial ability to process the requested amount of water. The applicant has requested an allocation of 1.1520 mgd. As part of the application, the applicant reported the actual use of water at the facility for the years 1995 through 2019. The highest reported actual use of water at the facility was for 2006, which showed an average annual water use of 0.3874 mgd (page 63 of the January 14, 2020 RAI response). As the highest reported actual use of water in the facility was significantly less than the requested allocation, the previous use does not provide evidence of the physical ability to process the requested allocation. The applicant has asserted that the facility is being renovated to have the physical ability to process the requested allocation. But the applicant has failed to provide sufficient evidence showing that such renovations will create the necessary physical ability. Therefore, the required reasonable assurance has not been provided. Section 2.3.4.1(c) through (f) and (h) require the District to consider certain matters concerning the beverage processing facility or facilities where the use will occur. The applicant has only provided information for the High Springs facility, but has provided no reasonable assurance that the High Springs facility is the only beverage processing facility where the use of the requested allocation will occur. Therefore, the required reasonable assurance has not been provided. The DOAH Proceedings On March 6, 2020, Seven Springs filed a Petition seeking to challenge the District’s preliminary decision to deny the renewal application.5 The District referred this matter to DOAH on March 9, 2020, DOAH Case No. 20-1329 was assigned to this matter, and the undersigned issued a Notice on March 24, 2020, scheduling a final hearing for July 21 through 23, 2020. Seven Springs filed a Motion in Limine on June 18, 2020, seeking to prohibit the District from raising grounds for denial that were not set forth in the staff report referenced by Mr. Zwanka. Based on its review of discovery responses, Seven Springs argued that the District was preparing to provide testimony or evidence on issues that were not identified in the staff report. On June 29, 2020, the undersigned issued an Order partially granting Seven Springs’ Motion in Limine: The instant case is before the undersigned based on a “Motion in Limine” filed by Petitioner on June 18, 2020. After considering the arguments set forth in the Motion in Limine and the Response thereto, the undersigned rules that, at this point, the potential 5 The staff recommendation in the District’s March 3, 2020, notice and the enclosed Water Use Technical Staff Report is a proposed agency action which Seven Springs could challenge by petitioning for a formal administrative hearing under section 120.57, Florida Statutes. See generally Hillsboro-Windsor Condo. Ass'n v. Dep't of Nat. Res., 418 So. 2d 359, 361–62 (Fla. 1st DCA 1982) (treating a DNR staff recommendation as the equivalent of a notice of intent of proposed final agency action). grounds for denying Petitioner’s renewal application shall be limited to the reasons set forth in the “Water Use Technical Staff Report” dated February 27, 2020. See M.H. v. Dep’t of Children & Fam. Svcs., 977 So. 2d 755, 763 (Fla. 1st DCA 2008)(stating that “in this case, DCF offered a precisely formulated reason for its denial of the renewal of the Foster Parents' license. At the administrative hearing, the ALJ properly restricted his consideration of the matter to the specific question that DCF itself had framed as the issue to be decided.”). In order for Respondent to properly raise additional reasons for denying Petitioner’s renewal application, it is incumbent on Respondent to promptly set forth those grounds in a formal pleading and demonstrate that Petitioner will suffer no prejudice. See generally Cottrill v. Dep’t of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996)(stating that “[p]redicating disciplinary action against a licensee on conduct never alleged in an administrative complaint or some comparable pleading violates the Administrative Procedure Act. To countenance such a procedure would render nugatory the right to a formal administrative proceeding to contest the allegations of an administrative complaint.”) Respondent fails to cite any controlling authority to support its argument that disclosure of additional grounds of denial during the discovery process amounts to sufficient notice. On July 8, 2020, the parties filed a joint motion requesting that the final hearing be continued for at least 30 days, and the undersigned issued an Order on July 23, 2020, rescheduling the final hearing for October 14 through 16, 2020. The parties filed another joint motion on July 31, 2020, asking that jurisdiction be relinquished to the District. In support thereof, the parties stated that Seven Springs and the District’s staff had reached a proposed settlement agreement that was contingent on the approval of the District’s governing board. After the relinquishment of jurisdiction, the District’s staff would recommend to the governing board that “a proposed water use permit renewal be issued to [Seven Springs] consistent with [the] Water Use Technical Staff Report which is attached hereto as Exhibit ‘A.’” The aforementioned exhibit indicated that Seven Springs was seeking a permit for “beverage processing” and set forth 27 “conditions for issuance of permit number 2-041-218202-3.” The seventh and eight conditions respectively specified that the “[u]se classification is Beverage Processing” and that the “[s]ource classification is ‘Groundwater.’ Among the proposed conditions was that Seven Springs “is authorized to withdraw a maximum of 0.9840 mdg of groundwater for beverage processing use.” During the course of the final hearing, Seven Springs committed to the reduction of the withdrawal to 0.9840 mgd and to a corresponding permit limitation. The 25th and 26th conditions addressed where the water could be bottled: Except as may be expressly provided in the permit conditions, the entire groundwater allocation authorized by this permit shall be bottled at the Gilchrist County facility or otherwise used at the Gilchrist County facility for potable uses, equipment cooling, line flushing, and other industrial uses. As used in the permit conditions, the term “bottled” means sealed in bottles, jugs, and/or similar containers that are intended to be later offered for retail sale for human consumption. As used in the permit conditions, the term “Gilchrist County facility” means the manufacturing facility located at 7100 NE CR 340, High Springs, Florida 32643 in Gilchrist County, Florida. A portion of the groundwater allocation authorized by the permit may be bottled at the Madison County facility. As used in the permit conditions, the term “Madison County facility” means the manufacturing facility located at 690 and 1059 NE Hawthorn Avenue, Lee, Florida 32059 in Madison County, Florida. (The groundwater allocation authorized by the permit is not based on any use at the Madison County facility. The permit allocation is being granted based on the expectation that the product line build-out at the Gilchrist County facility will be completed in accordance with the schedule provided in the application documents submitted on November 1, 2019.)[6] The District’s Governing Board held a public meeting on August 11, 2020. When Seven Springs’ application came up for consideration, the following comments were made: Vice Chairperson Quincey: I would – I would like to move that we table the Seven Springs permit application. And the reason why I’m asking to table this is because we’ve looked at the application; and, as you look through, other water bottling facilities that’s in our district, we have always had the actual user of the water bottling permit on the application. So, in my opinion, we need to have Nestle as a co- applicant for – for this permit. So I think them being – if I understand it correctly, the well is on one property; but then, once it leaves there, it enters into a pipeline which goes to a facility. And the water – all of the water is actually used by Nestle and utilized by Nestle. So, with that being said, I think that they need to be co-applicants where we can be directly relating to them as we go through this process. * * * Board Member Schwab: I think that the science is sound on this permit. Seven Springs has gone through the process of applying for it, and they’ve met all the criteria. To have another person co- apply on the permit, I personally don’t think it’s necessary. I think the ones that are -- just because 6 Seven Springs’ proposed consumptive use of water, even with the proposed tankering of water to the Madison County Plant, is not an interdistrict transfer of water that is regulated by section 373.2295. you’re using the water somewhere else other than who is – who owns the property that the water is being pumped off of as well as the – that is applying for the permit and who hasn’t had the permit in the past, I just don’t necessarily agree with that right there. I’d rather --- I’d rather go ahead and do – take a vote and use what we’ve done right now in the way it is. * * * Chairperson Johns: Is there a rule or is there a legality that we need to look at? I mean, is there a rule that would need for Nestle to be a co-applicant or have their name on an application? And I don’t know whether you can help us with that or not. Mr. Reeves[7]: I think there is certainly – there is certainly support for that in our rules. I think that’s certainly something we would look at in the Board’s discretion. I think they’re – the issue I guess is what you’ve got is you’ve got a situation where the applicant owns the real property where the water is coming off of. To get the right to use the real – the water, they have to show a use; and they have to show what is going to be done with that water. In this case, the ultimate user is not on the permit. I think that’s Mr. Quincy’s point is that ultimate user is not on the permit, and so does that ultimate user need to be an applicant? Yeah, I think that is within the Board’s discretion in my opinion. * * * Vice Chairperson Quincy: I think that we should have that co-applicant, and I think they need to be part of when we say, [these are] the restrictions, they’re the ones using it, they need to agree to the restrictions. If they’re – whatever – whatever it is because, if you don’t have them, they’re the ones – 7 Mr. Reeves is the Governing Board’s counsel. However, the transcript from the August 11, 2020, Governing Board meeting does not give Mr. Reeves’s first name actually the ones using the water. It’s not the folks that we’re giving the permit to. They’re just pumping it out of the ground. * * * Chairperson Johns: This is a difficult vote. And I know everyone has looked at this on the Board. It’s a very important decision in many ways. I do feel like that [for] all of the reasons that Mr. Richard has said that I feel like that permit has been vetted well. But I do think that the – having their name on the permit is not a bad idea if we are going to – if theirs is going to be the ones that are using the water and have to respect the – the permit and the permit obligations. The Governing Board then took a vote and elected to table Seven Springs’ application. On August 12, 2020, the District referred this matter back to DOAH where it was assigned DOAH Case No. 20-3581. On August 14, 2020, the District filed a “Motion to Amend Grounds for Denial” (“the Motion to Amend”) arguing that Seven Springs’ application fails to satisfy section 2.1.1 of the Handbook entitled “Legal Control Over Project Site”: Applicants shall demonstrate the legal right to conduct the water use on the project lands or site. Legal right is demonstrated through property ownership or other property interest, such as a lease, at the project site. Applicants shall provide copies of legal documents demonstrating ownership or control of property through the requested permit duration. The recommended permit duration shall take into consideration the time period of the legal interest in the property. The requirements of this section shall not apply to proposed water uses reviewed in accordance with 40B-2.025(2), F.A.C., under the Florida Power Plant Siting Act. The District also argued that Seven Springs’ application fails to satisfy section 2.3.1 of the Handbook entitled “General Criteria”: Under section 373.223, F.S., in order to receive an individual permit, an applicant must demonstrate that the proposed water use is a reasonable- beneficial use of water. As part of the demonstration that a water use is reasonable- beneficial, the applicant must show demand for the water in the requested amount. This section describes the factors involved in determining whether there is demand and the appropriate permit allocation for a proposed water use. Demonstration of need requires the applicant to have legal control over the project site, facilities, and for potable water supply, the proposed service area, as required in sections 2.1.1 and 2.1.2. The allocation permitted to serve the applicant’s need for water must be based on the demonstrated need. Sections 2.3.2 through 2.3.4 identify the components of demand that must be identified by applicants for individual permits for each water use type. The District argued that Seven Springs’ application for a renewal permit should be denied because it: does not meet the above quoted provisions of the Applicant’s handbook because such application does not demonstrate (or even assert) that SEVEN SPRINGS has the legal right to conduct the water use on the project lands or site and further does not show (or even assert) that SEVEN SPRINGS has legal control over the project site and/or facilities. Seven Springs responded to the Motion to Amend, in part, by stating the following: In March 2019, Seven Springs submitted its application for the renewal of its existing permit. The requested renewal is for the same water allocation. In other words, the application does not propose any change in the use type, permittee, or allocation from what is currently permitted. Yet, just short of a year and five months after the application was filed, the District has developed a new theory to reject the renewal. On August 12, 2020, the District’s counsel notified Seven Springs that if Nestle Waters North America did not agree to be a co-applicant on the permit, the District would file its Motion to Amend. * * * Assuming arguendo that the District’s new position is correct, as the District’s motion makes clear, this alleged “error or omission” is glaringly obvious, and, therefore, there is no excuse for the District’s failure to timely raise the issue. More importantly, regardless of whether the District is otherwise permitted to amend its 120.60(3) agency action notice letter, the District is still prohibited by section 120.60(1) from denying Seven Springs’ permit for failure to correct this “error or omission” found in the initial application and continuing from the issuance of the original permit. After being granted leave to file a reply, the District replied, in pertinent part, as follows: SEVEN SPRINGS asserts that the DISTRICT cannot amend its notice of denial under the provisions of § 120.60(1), Fla. Stat., which provides, “An agency may not deny a license for failure to correct an error or omission or to supply additional information unless the agency timely notified the applicant within this 30-day period.” The problem with this argument is that the DISTRICT is not seeking to amend the notice of denial to assert any, “failure to correct an error or omission or to supply additional information.” As far as the requested amendment is concerned, there is no error or omission nor additional information to be supplied. SEVEN SPRINGS has represented numerous times that Nestle Waters of North America owns the facility which will be bottling the water allocation. The applicable rules of the DISTRICT require the applicant to have control of the site where the water use will occur (Handbook at 2.1.1 Legal Control over Project Site, “Applicants shall demonstrate the legal right to conduct the water use on the project lands or site.”) (Handbook at 2.3.1 General Criteria, “Demonstration of need requires the applicant to have legal control over the project site, facilities, . . .”). The use of the water occurs where it is bottled (Handbook at 1.1(13) Beverages Processing Use – The sealing of drinkable liquids (including bottled water, as defined in section 500.03(1)(d), F.S.) in bottles, packages, or other containers and offered for sale for human consumption”). The amendment requested by the DISTRICT is not an amendment to assert a failure to correct an error or omission or to supply additional information. Rather, it is an amendment to assert that a particular DISTRICT rule should be applied to the application which, for the purposes of the amended grounds, has no error [or] omission or need of additional information. As all the amendment seek[s] to do is apply an additional DISTRICT rule[,] the proscriptions of § 120.60(1), Fla. Stat., do not apply. The undersigned issued an Order on September 16, 2020, denying the Motion to Amend based on the following reasoning: In the course of arguing that Seven Springs’ application should be denied, the District and Petitioners are not necessarily limited to the grounds set forth in the District’s March 3, 2020, letter. See generally DeCarion v. Dep’t of Envtl Reg., 445 So. 2d 619, 620 (Fla. 1st DCA 1984)(rejecting an argument that the Department of Environmental Regulation was “locked in” to the reasons for denial set forth in its letter of intent to deny a permit application). However, section 120.60(1), Florida Statutes (2020), forecloses certain grounds for denial from being raised at this stage of Seven Springs’ permit application proceeding. The aforementioned statute provides in pertinent part that: [u]pon receipt of a license application, an agency shall examine the application and, within 30 days after such receipt, notify the applicant of any apparent errors or omissions and request any additional information the agency is permitted by law to require. An agency may not deny a license for failure to correct an error or omission or to supply additional information unless the agency timely notified the applicant within this 30-day period . . . An application is complete upon receipt of all requested information and correction of any error or omission for which the applicant was timely notified or when the time for such notification has expired. Whether the Motion to Amend and Petitioner’s Motion to Amend will be granted turns on whether Seven Springs’ alleged failure to demonstrate legal right and legal control in its application is a pure substantive deficiency undermining the merits of Seven Springs’ application or a paperwork deficiency that could possibly have been corrected via the provision of additional documentation. That distinction was described by the Honorable John G. Van Laningham in MVP Health v. Agency for Health Care Administration, Case No. 09-6021 (Fla. DOAH April 22, 2010), rejected in part, Case No. 2009012001 (Fla. AHCA May 26, 2010)): Simply put, the failure of an applicant to meet the criteria for a license, which results in a denial on the merits, is not, as a logical matter, equal to the failure of an applicant to timely provide requested information (or correct an identified error or omission), which results, as a procedural matter, in a refusal to consider (or to deny) an application consequently deemed to be incomplete. It is one thing, in other words, to say, based on all the necessary information, that a person is ineligible for licensure. It is another thing to say that the person’s eligibility cannot and will not be determined because the person has failed to provide all of the necessary information upon which such a determination must be based. The Water Use Permit Applicant’s Handbook indicates that the new grounds for denial urged by the District and Petitioners are issues that Seven Springs could have potentially corrected if it had been provided the timely notice required by section 120.60(1). For instance, Section 2.1.1. indicates that “legal right” can be demonstrated by providing a legal document such as a lease. Section 2.3.1. refers to demonstrating “legal control,” and that requirement could certainly be satisfied by the provision of legal documents. In sum, the new grounds for denial urged by the District and Petitioners are in the nature of alleged deficiencies that Seven Springs could have potentially corrected if it had been given the notice and opportunity required by section 120.60(1). While the District asserts that Seven Springs has represented numerous times that Nestle owns the facility that will be bottling the water allocation, that assertion (even if true) does not excuse the District from timely notifying Seven Springs of the perceived omission in its application and giving Seven Springs an opportunity to correct that perceived omission. Now that the 30-day notification period in section 120.60(1) has passed, the District is foreclosed from basing denial of Seven Springs’ application on a failure to submit documentation to demonstrate compliance with Sections 2.1.1. and 2.3.1. See § 120.60(1), Fla. Stat. (mandating that “[a]n agency may not deny a license for failure to correct an error or omission or to supply additional information unless the agency timely notified the applicant within this 30-day period.”). In a Motion for Reconsideration, the District argued that: SEVEN SPRINGS does not bottle the water and does not propose to bottle the water. SEVEN SPRINGS sells the water to a local facility, apparently owned or legally controlled by someone else, to be bottled. As SEVEN SPRINGS does not bottle the water, it is not possible for SEVEN SPRINGS to “demonstrate the legal right to conduct the water use” as required by 2.1.1 of the Applicant’s Handbook. This is not a “paperwork deficiency.” This is a “substantive deficiency” which is shown on the face of SEVEN SPRINGS’ application. The DISTRICT’s motion to amend should be granted so this issue can be conducted at the final hearing. The undersigned issued an Order on September 25, 2020, denying the District’s Motion for Consideration: The instant case is before the undersigned based on Respondent’s “Motion for Reconsideration of Order Denying Motion to Amend” (“the Motion for Reconsideration”) filed on September 21, 2020. After considering the arguments set forth therein, the Motion for Reconsideration is DENIED based on the reasoning set forth in the “Order Denying Motions to Amend” issued on September 16, 2020. However, the undersigned provides this clarification. The issue in the instant case is decided by the fact that all of the information available to the undersigned demonstrates that the alleged deficiency in the Seven Springs Water Company’s (“Seven Springs”) application is of the type that potentially could have been corrected by the provision of additional information. Thus, this alleged deficiency is something that could have, and should have, been the subject of a notice to Seven Springs within 30 days of Respondent receiving Seven Springs’ application. See § 120.60(1), Fla. Stat. (2020). Regardless of whether Seven Springs was actually capable of correcting that alleged deficiency, any other ruling would render the pertinent requirement set forth in section 120.60(1) meaningless. The District filed a “Second Motion in Limine” (“the Second Motion in Limine”) on September 28, 2020, arguing that: The only testimony and evidence allowed at the final hearing herein should be required to be related to SEVEN SPRINGS’ presently filed permit application, and the permit terms and conditions requested by SEVEN SPRINGS therein. Testimony and evidence of any permit terms and conditions not included or requested in SEVEN SPRINGS’ presently-filed application should be precluded from being introduced into evidence or considered at the final hearing. Seven Springs responded, in part, as follows: Further, the District’s position that “the only testimony and evidence allowed at the final hearing should be required to be related to SEVEN SPRINGS’ presently filed permit application” ignores the fact that the District has already received multiple documents addressing the few issues raised by the District in its March 3, 2020 proposed agency action. In fact, some of those documents are currently available in the District’s online permitting file for the Seven Springs’ permit. This publicly accessible permit file includes Seven Springs’ engineering report titled “NWNA High Springs Water Consumption Viability Analysis” prepared by Adam Thibodeau and dated July 30, 2020, and the District’s engineering report titled “NWNA High Springs Water Consumption Annual Daily Usage Estimate” prepared by Tom Rutledge for the District and dated July 30, 2020. Additionally, the District’s own summary/description in its online permit file identifies the requested allocation as 0.984 MGD (See Exhibit A), which is the reduced allocation contained in the July 30, 2020 Seven Springs’ expert report and accepted in the District’s expert report. Additional information already reviewed or prepared by the District as part of this proceeding should not be precluded from being considered as evidence, including the amended memorandum of agreement between Seven Springs and NWNA dated May 27, 2020, provided to SRWMD in June 2020, and the additional permit conditions contained in the Technical Staff Report attached to the Stipulation and Joint Motion for Relinquishment of Jurisdiction and published online by the District in its August 4, 2020 Governing Board Agenda Package. No statute, rule or case law supports limiting or precluding consideration of this information which has been in the District’s possession for months and is directly relevant to the issues in this proceeding (i.e., providing reasonable assurances of the applicable permitting criteria). Nor is there any rule or statute limiting the information which may be considered in a de novo administrative hearing to only the information “presently on file with the DISTRICT” based upon some arbitrary date chosen by the District. The District’s argument that “amendments may not be made at the last minute and under circumstances which prejudice other parties,” is without merit as any “changes” to the Seven Springs’ application have already been discussed with, reviewed by, and accepted by the District months before the final hearing date. The District’s reliance upon City of West Palm Beach v. Palm Beach County, 253 So. 3d 623 (Fla. 4th DCA 2018), the only case cited to in the District’s Motion, is misplaced. In City of West Palm Beach, “[t]he amended application included revised construction plans, a redesigned storm water management system, a nutrient loading analysis, a compensatory mitigation plan addendum, and a new cumulative impact assessment” that were submitted only one week prior to the final hearing. Id. at 625. To the extent there has been any “amendment” or additional evidence provided to support issuance of the Seven Springs permit, it is Seven Springs responding to the District’s three alleged basis for denial, all asserting more information was required. The Amended Memorandum of Agreement provided the response the District found sufficient to address the first basis for denial; the Seven Springs expert report dated July 30, 2020 provided the response to address the District’s second basis for denial; and the two additional permit conditions (quoted below in footnote 4) were provided by the District to address the third basis for denial. The District’s expert report also provides evidence that the High Springs Plant, as proposed, has the capacity and ability to use the 984,000 gpd annual average water allocation and satisfies the second basis for denial. None of the [grounds] for denial at issue in this proceeding include any environment or resource protection criteria, nor do they require any new complex evidence to be developed. Unlike City of West Palm Beach, here the District is aware of Seven Springs’ acceptance of the reduced allocation and there are no “highly technical” amendments being proposed. The District is fully aware of, and has had ample opportunity to review the responses to the basis of denial that have been provided to, or suggested by, it in this proceeding. It is ironic that the District is continuing to request new information (discussed below) to satisfy one of the basis for denial while, at the same time, attempting to limit Seven Springs to only what is in its “current” permit file. The undersigned issued an Order on October 13, 2020, denying the District’s Second Motion in Limine on the basis that the District had failed to demonstrate that it was in danger of being prejudiced. Findings Specifically Relating to the Grounds for Denial The District’s first basis for denial asserts that the MOA failed to show that Seven Springs is obligated to provide “any or all of the requested allocation to NWNA.” When one considers the MOA, the amended MOA, and the 25th and 26th conditions negotiated between Seven Springs and the District’s staff, the greater weight of the evidence demonstrates that the entire groundwater allocation will be bottled at the Nestle plants at High Springs and Madison. As a result, this first basis cannot support denial of Seven Springs’ permit application. With regard to the second ground for denial, the 21st condition negotiated between Seven Springs and the District’s staff reduced the requested allocation from 1.152 mgd to 0.984 mgd. The testimony and evidence presented at the final hearing demonstrated that there are currently two bottling lines in operation in the High Springs plant. Line 1 has been replaced since NWNA acquired the facility with a new “high–speed” line (at a cost of approximately $15 million) that fills 81,000 half-liter bottles per hour (“bph”), and Line 2 is an older 54,000 bph line that is undergoing renovations to a high–speed line. Although there are currently only two lines, NWNA has plans to buildout the High Springs plant so that it will have four high-speed lines. Seven Springs presented evidence and credible expert testimony of Adam Thibodeau, P.E., demonstrating that the High Springs plant will have four high-speed lines in operation within the proposed permit term of five years. The third high-speed line will be installed within the existing building. A building expansion will allow the addition of a fourth high-speed line. It is expected that the third and fourth lines added to the High Springs plant will be capable of producing at least 90,000 bottles per hour. The greater weight of the evidence supports a finding that the plans for expansion of the bottling plant production lines are sufficiently established. Mr. Thibodeau calculated the estimated daily water usage at the High Springs Plant using two separate assumed average line efficiency rates: 85 percent (the original number proposed by Mr. Thibodeau) and 77 percent (the number arrived at after discussions with the District’s expert). Mr Thibodeau testified that, on average, high-speed lines can operate at an overall 80 to 85 percent efficiency, and that both 85 and 77 percent are reasonable efficiency rates for the proposed lines. His testimony is accepted. Ultimately, the 77 percent efficiency rate was chosen, meaning water demand was calculated at 77 percent of the maximum line production (accounting for mechanical efficiency and planned and unplanned downtime/maintenance) for the four lines at the High Springs Plant once it is built out. This resulted in a demonstration of a 0.8740 mgd water demand for product water, and a 0.1100 mgd water demand for equipment cooling, line flushing, and other uses. Those numbers result in a cumulative total expected daily water usage of 0.984 mgd annual average for the High Springs plant. The District’s expert authored a report stating that his “evaluation would support a proposed average water usage of 0.984 million gallons per day annually.” In addition, the District’s expert testified that the 0.984 mgd figure was in the range of possible outcomes. In sum, the greater weight of the evidence demonstrated that the High Springs plant will have sufficient physical capacity to use the full requested allocation of water within the proposed five-year permit term.8 The District’s third basis for denial asserts that Seven Springs “has provided no reasonable assurance that the High Springs facility is the only beverage processing facility where the use of the requested allocation will occur.” The issue of tankering water to Madison is not part of the application, was subject to no RAI, and was not part of the original denial. It was raised, apparently, as part of settlement negotiations that were not accepted by the District. In keeping with the previous rulings limiting the District from adding grounds for denial, the undersigned does not accept that Seven Springs can simply amend its application at the hearing to add activities and add uses for the water that were not proposed. 8 The physical ability to process 0.984 mgd is satisfied by the High Springs plant without any reliance on tankering water to the Madison County plant. If Seven Springs wants to use the water from its High Springs wells at a facility other than the adjacent Nestle bottling plant, then it may propose that use in a request for a permit modification. However, because that use is not a part of either the application or the notice of agency action properly before this tribunal, it is not authorized by anything contained in this Recommended Order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Suwannee River Water Management District render a Final Order granting permit No. 2-041-218202-3 to the Seven Springs Water Company. DONE AND ENTERED this 20th day of January, 2021, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 2021. COPIES FURNISHED: Paria Shirzadi Heeter, Esquire Manson Bolves Donaldson Varn, P.A. 109 North Brush Street, Suite 300 Tampa, Florida 33602 (eServed) Douglas P. Manson, Esquire Manson Bolves Donaldson Varn, P.A. 109 North Brush Street, Suite 300 Tampa, Florida 33602-2637 (eServed) George T. Reeves, Esquire Davis, Schnitker, Reeves and Browning, P.A. Post Office Drawer 652 Madison, Florida 32341 (eServed) Craig D. Varn, Esquire Manson Bolves Donaldson Varn, P.A. 106 East College Avenue, Suite 820 Tallahassee, Florida 32301 (eServed) Frederick T. Reeves, Esquire Frederick T. Reeves, P.A. 5709 Tidalwave Drive New Port Richey, Florida 34562 (eServed) Jefferson M. Braswell, Esquire Braswell Law, PLLC 116 Northeast 3rd Avenue Gainesville, Florida 32601 (eServed) Hugh L. Thomas, Executive Director Suwannee River Water Management District 9225 County Road 49 Live Oak, Florida 32060 (eServed)
