STATE OF FLORIDA NORTHWEST FLORIDA WATER MANAGEMENT ...
STATE OF FLORIDA NORTHWEST FLORIDA WATER MANAGEMENT DISTRICT
WASHINGTON COUNTY, Petitioner, and THE NORTHERN TRUST COMPANY, AS THE SOLE TRUSTEE OF THE JAMES L. KNIGHT CHARITABLE TERM TRUST, Intervenor, vs.
NFWMD Permit No. 107057 DOAH Case No. 10-2983
BAY COUNTY AND NORTHWEST FLORIDA WATER MANAGEMENT DISTRICT, Respondents. ___________________________________/ THE NORTHERN TRUST COMPANY, Petitioner, vs.
NFWMD Permit No. 107057 DOAH Case No. 10-2984
BAY COUNTY AND NORTHWEST FLORIDA WATER MANAGEMENT DISTRICT, Respondents. ___________________________________/
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JAMES G. MURFEE AND LEE LAPENSOHN, Petitioners,
NFWMD Permit No. 107057 DOAH Case No. 10-10100
vs. NORTHWEST FLORIDA WATER MANAGEMENT DISTRICT, Respondent, and BAY COUNTY BOARD OF COUNTY COMMISSIONERS, Intervenor. ___________________________________/
FINAL ORDER Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge (“ALJ”), David M. Maloney, held a formal administrative hearing in this matter on September 19-21, 26-30, October 3-7, 10, and 11, 2011, in Tallahassee, Florida. On July 27, 2012, the ALJ submitted a Recommended Order (“RO”) to the Northwest Florida Water Management District (“District”). Bay County (Respondent in Case Nos. 10-2983 and 10-2984 and Intevenor in Case No. 10-10100) timely filed exceptions to the Recommended Order. Petitioners Washington County and The Northern Trust Company, as the Sole Trustee of the James L. Knight Charitable Term Trust (“Northern Trust”) , each timely filed responses to the exceptions filed by Bay County. This matter came before the Governing Board of the District on September 26, 2012 for final agency action and entry of a Final Order herein.
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1. STATEMENT OF THE ISSUE The general issue before the District is whether to adopt the Recommended Order as the District’s Final Order, or to reject or modify the Recommended Order in whole or in part, in accordance with Section 120.57(1)(l), Florida Statutes. The specific issue is whether water use permit application no. 107057, submitted to the Northwest Florida Water Management District (“District”) by Bay County, meets the conditions for issuance of a permit as set forth in Section 373.223, Florida Statutes, and Chapter 40A-2, Florida Administrative Code. The application from Bay County reviewed and evaluated by the ALJ was for use of 5 million gallons per day (“MGD”), annual daily average of groundwater from the Floridan aquifer, with a maximum daily withdrawal of 30 MGD for no more than 60 days per year (with a maximum of 52 consecutive days), and a maximum monthly withdrawal amount of 775 million gallons.
The use
classifications for the proposed use were Public Supply and Industrial use.
The ALJ
recommended that the application be denied. 2. STANDARD OF REVIEW The rules regarding an agency’s consideration of and action on exceptions to a recommended order are well established in Florida law. Section 120.57(1)(l), Florida Statutes, establishes specific standards for agency review of findings of fact as well as for agency review of conclusions of law. Review of Findings of Fact A reviewing agency may not reject or modify findings of fact, unless the agency first determines, from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence or that the proceedings below did not comply with essential requirements of law. Section 120.57(1)(l), Florida Statutes. The
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term “competent substantial evidence” means evidence sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. Perdue v. TJ Palm Associates, Ltd., 755 So. 2d 660, 665-666 (Fla. 4th DCA 1999), quoting from and following Degroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). The term “competent substantial evidence” refers to the existence of some quantity of evidence for each essential element of a finding and to the legality and admissibility of that evidence. Scholastic Book Fairs, Inc. v. Unemployment Appeals Comm’n., 671 So 2d 287, 289 n.3 (Fla. 5th DCA 1996). An agency may not disturb a finding of fact supported by any competent substantial evidence from which the finding could be reasonably inferred.
Freeze v. Dep’t of
Transportation, 556 So. 2d 1204, 1205 (Fla. 5th DCA 1990); Berry v. Dep’t of Envtl. Reg., 530 So. 2d 1019, 1022 (Fla. 4th DCA 1988). The Governing Board may not reweigh evidence admitted in the proceeding below, may not resolve conflicts in the evidence and may not judge the credibility of witnesses or otherwise interpret evidence anew. Save Anna Maria, Inc. v. Dep’t of Transportation, 700 So. 2d 113, 118 (Fla. 2d DCA 1997; Brown v. Criminal Justice Standards & Training Comm’n, 667 So. 2d 977, 979 (Fla. 4th DCA 1996). The standard is not whether the record contains evidence contrary to the findings of fact in the recommended order, but whether any competent substantial evidence supports each finding in issue. Florida Sugar Cane League v. State Siting Bd., 580 So. 2d 846, 851 (Fla. 1st DCA 1991). Review of Conclusions of Law The Governing Board may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretations of administrative rules over which it has substantive jurisdiction, provided the reasons for such rejection or modification are stated with particularity
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and the Governing Board finds that such rejection or modification is as or more reasonable that the ALJ’s conclusion or interpretation. Section 120.57(1)9l), Florida Statutes. The Governing Board lacks subject matter jurisdiction to overturn an ALJ’s rulings on procedural and evidentiary issues. Barfield v. Dep’t of Health, 805 So. 2d 1008, 1012 (Fla. 1st DCA 2001) (the agency lacked jurisdiction to overturn an ALJ’s evidentiary ruling); Lane v. Dep’t of Envtl. Protection, 29 F.A.L.R. 4063 (DEP 2007) (the agency has no substantive jurisdiction over procedural issues, such as whether an issue was properly raised, and over an ALJ’s evidentiary rulings); Lardas v. Dep’t of Envtl. Protection, 28 F.A.L.R. 3844, 3846 (evidentiary rulings of the ALJ concerning the admissibility and competency of evidence are not matters within the agency’s substantive jurisdiction). In issuing its Final Order, the Governing Board is not required to rule on an exception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record. Section 120.57(1)(l), Florida Statutes. 3. RULINGS ON EXCEPTIONS Bay County’s Exception No. 1 Bay County’s first exception takes issue with three conclusions of law found in paragraphs 243, 259 and 268 of the RO.1
In paragraph 243, the ALJ concludes that the
Petitioners below were not required to show that the permit would, in fact, significantly harm or affect natural systems (a condition for issuance of the permit found in Rule 62-40.410(2)(p), Florida Administrative Code) in response to Bay County’s prima facie case, but rather, the Petitioner’s burden was to prove that Bay County did not provide reasonable assurances that
1
Bay County also cites to the “Statement of the Issue” found on page 6 of the RO in this exception, however, since this statement is neither a finding of fact or conclusion of law, no ruling is necessary on this statement. 00131431-1
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natural systems would not be significantly affected. In paragraph 259, the ALJ concludes as part of his determination that Bay County’s application did not meet the applicable reasonablebeneficial use criteria that Bay County and the District failed to prove that natural systems would not be significantly affected by the permit. Finally, in paragraph 268, the ALJ concludes as part of his determination that Bay County’s application was not consistent with the public interest, that Bay County was unable to show what drawdown would likely occur in the surficial aquifer in connection with proposed withdrawals and therefore, how natural systems would be affected by the permit. Bay County’s contention with regard to these three paragraphs is that they demonstrate that the ALJ erroneously interpreted and applied the law found in Section 120.569(2)(p), Florida Statutes, regarding the burden of proof in this proceeding. Bay County argues that once it established a prima facie case demonstrating entitlement to the permit, the burden of proof shifted to the Petitioners and to defeat the permit Petitioners were required to affirmatively prove that the permitting criteria cited in paragraphs 243, 259 and 268 were not met by the applicant, e.g., that Bay County’s proposed withdrawals would, in fact, significantly harm or affect natural systems. As noted in the preliminary discussion of this agency’s authority regarding review of the ALJ’s conclusions of law, Section 120.57(1), Florida Statutes provides that Governing Board may only modify or reject those conclusions of law over which it has substantive jurisdiction. The Governing Board does not have substantive jurisdiction regarding Chapter 120, Florida Statutes generally, nor does it have substantive jurisdiction specifically regarding the burden of proof in administrative proceedings as enunciated in Section 120.569(2)(p), Florida Statutes. The courts have clearly and repeatedly interpreted Section 120.57(1)(l), Florida Statutes to
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restrict an agency’s authority to reject or alter an ALJ’s interpretation of legal issues that are outside of the agency’s substantive jurisdiction, including interpretation of Chapter 120, Florida Statutes. Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So. 2d. 1140, 1143, 1144 (Fla. 2d DCA 2001) (Secretary of Florida Department of Environmental Protection had no authority to reject ALJ’s conclusion of law that doctrine of collateral estoppel did not prevent petitioner from introducing evidence concerning the scope of secondary impacts of permit because application of the doctrine of collateral estoppel is not a matter within the agency’s substantive jurisdiction); Barfield v. Dep’t of Health, 805 So. 2d 1008, 1011, 1012 (Fla. 1st DCA 2002) (Department of Health had no authority to reject ALJ’s determination that certain evidence was not admissible in an administrative hearing because admission of evidence in a Chapter 120 hearing is not within the Department’s substantive jurisdiction); G.E.L. Corp. v. Dep’t of Envtl. Protection, 875 So. 2d 1257, 1264 (Department correctly determined that it had no jurisdiction to reject ALJ determination that ALJ could not conduct hearing on request for attorney’s fees related to petition filed on permit issued by Department because Department had no substantive jurisdiction concerning Chapter 120, Florida Statutes or attorney’s fees statutes). See also, FINR II, Inc. v. CF Industries, 2012 WL 231774 (Florida Department of Environmental Protection Final Order 2012) (Department has no authority to modify or reject the ALJ’s procedural and evidentiary rulings under the summary hearing provisions of Section 120.574, Florida Statutes). The Governing Board has no substantive jurisdiction over Chapter 120, Florida Statutes, it does not have authority to modify or reject the ALJ’s conclusions of law concerning the ALJ’s interpretation and application of Section 120.569(2)(p), Florida Statutes. For this reason, Bay County’s Exception Number 1 is denied.
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Bay County’s Exception No. 2 In its Exception Number 2, Bay County objects to the ALJ’s findings of fact contained in paragraphs 225-229 of the RO.
In these findings the ALJ determined that two potential
alternatives existed to the groundwater withdrawal plan and associated wellfield proposed by Bay County that were not explored by Bay County and that neither Bay County nor the District presented an analysis of potential alternatives to the wellfield proposed by Bay County in its application. Bay County argues that these findings are irrelevant because there is no requirement that it conduct such an alternatives study; that Rule 62-40.410(2)(j), Florida Administrative Code, to the extent relevant, only requires an applicant to address the feasibility of reclaimed water, storm water, aquifer storage and recovery, brackish water and saltwater; and that the findings in these paragraphs are not supported by competent substantial evidence in the record. Bay County does not dispute the finding in paragraph 225 that evidence was offered that a wellfield with 10 MGD capacity could be constructed along an existing Bay County transmission line as an alternative to the proposed wellfield. Bay County’s dispute with the cited findings appears to be whether 10 MGD is the amount it actually needs in case of an emergency and whether the potential 10 MGD wellfield is feasible. No other findings in paragraphs 225 through 229 are specifically disputed by Bay County. The findings in paragraphs 225 through 229 are supported by competent substantial evidence in the record. The fact that there may be testimony contrary to the finding of fact made by the ALJ does not render the finding invalid. The standard is not whether the record contains evidence contrary to the findings of fact in the RO, but whether any competent substantial evidence supports the finding(s) in issue. Florida Sugar Cane League v. State Siting Bd., 580 So. 2d 846, 851 (Fla. 1st DCA 1991).
The
Governing Board may not reweigh evidence admitted in the hearing, may not resolve conflicts in
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evidence and may not judge the credibility of witnesses or otherwise interpret evidence anew. Save Anna Maria, Inc. v. Dep’t of Transportation, 700 So. 2d 113, 118 (Fla. 2d DCA 1997). As Bay County suggests, Rule 62-40.410(2)(j), Florida Administrative Code, does not specifically require a feasibility “study” of alternatives to the water source proposed in an application.
The Rule does, however, require the agency to consider the feasibility of
alternatives, thus, an applicant is required to submit information providing reasonable assurances to the agency demonstrating that alternative sources to the source proposed in an application are not feasible. A “study” is a common means by which an applicant demonstrates compliance with a permitting criterion such as this one. In this context the ALJ’s finding that no study of feasible alternatives was conducted by Bay County (paragraph 225) and that no analysis of alternatives was presented at the hearing (paragraph 229), neither of which is disputed by Bay County, is relevant to the issue of whether feasible alternatives were properly considered by District in its review of Bay County’s application. With regard to Bay County’s argument that the consideration of alternative sources required under Rule 62-40.410(2)(j), Florida Administrative Code is limited to “reclaimed water, stormwater, aquifer storage and recovery, brackish water and saltwater,” this position does not reflect the plain language of the Rule. The Rule requires consideration of the feasibility of “alternative sources such as reclaimed water, stormwater, aquifer storage and recovery, brackish water and salt water.” The qualifying words “such as” clearly mean the realm of alternatives to be considered is not limited to those specifically identified in the Rule. If there was an intention on the District’s or the Florida Department of Environmental Protection’s2 part to limit the consideration of alternatives solely to those listed in this provision, it is not evident
2
This criterion is incorporated by reference from Chapter 62-40, Florida Administrative Code, a rule chapter adopted by the Department. 00131431-1
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here or elsewhere in the Rule. For this reason, it was both appropriate and relevant for the ALJ to consider and address the feasibility of the two alternatives described in paragraphs 225-229 and the fact that these alternatives were not considered by Bay County or the District in determining whether Bay County’s proposed use is a reasonable-beneficial use and whether the use is consistent with the public interest. For the foregoing reasons, Bay County’s Exception No. 2 is denied. Bay County’s Exception No. 3 Bay County’s Exception No. 3 contends that the ALJ’s “finding” regarding the impact of Bay County’s proposed wellfield on natural systems is not based on competent substantial evidence. Bay County does not clearly identify the disputed portion of the RO by page number or paragraph and does not include appropriate and specific citations to the record in support of this exception. The Governing Board is not required to rule on any exception that does not clearly identify the disputed portion of the RO by page number or paragraph, that does not identify the legal basis for the exception or that does not include appropriate citations to the record. Section 120.57(1)(k), Florida Statutes. Exception No. 3 does not identify a specific finding of fact to which the objection is directed and provides little in the way of citations to the record to support the argument, therefore, The Governing Board is not required to rule on this exception. Bay County mentions paragraph 243 of the RO as being “tied in” with the issue of impacts to natural systems, but paragraph 243 is a conclusion of law, not a finding of fact. As a conclusion of law, paragraph 243 of the RO concerns the burden of proof in the proceeding in the proceeding below, an issue raised in Bay County’s Exception No. 1, which is ruled on and
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denied above. To the extent this exception is directed to the burden of proof issue, that issue has been addressed in the ruling on Exception No. 1 Insofar as Bay County seeks to attack the factual underpinnings of the conclusion of law found in paragraph 243 of the RO, there are numerous findings of fact by the ALJ in the RO (see for example paragraphs 182-183, 190-201) that are unchallenged by Bay County that address the adverse impacts that would and could occur to natural systems, based on the drawdowns from the proposed wellfield that were predicted to occur by the groundwater model relied on by Bay County, if that model was capable of accurately predicting such drawdowns.3 By failing to take exception to the findings of fact on which the conclusion of law in paragraph 249 is based, Bay County has waived any objection to those findings of fact. Envtl. Coalition of Florida, Inc. v. Broward County, 586 So. 2d 1212, 1213 (Fla. 1st DCA 1991); Colonnade Medical Center, Inc. v. State, 847 So. 2d 540, 542 (Fla. 4th DCA 2003). There is competent substantial evidence in the record that harm to natural systems would result if the withdrawals proposed by Bay County were implemented and the drawdowns predicted by Bay County’s model in fact occurred. The Governing Board may not reweigh evidence admitted in the hearing, may not resolve conflicts in evidence and may not judge the credibility of witnesses or otherwise interpret evidence anew. Save Anna Maria, Inc. v. Dep’t of Transportation, 700 So. 2d 113, 118 (Fla. 2d DCA 1997). For all of the foregoing reasons, Bay County’s Exception No. 3 is denied. Bay County’s Exception No. 4 Bay County’s Exception No. 4 appears to be directed to the conclusions of law found in paragraphs 262 through 268 of the RO through which, collectively, the ALJ concludes that the
3
The ALJ, in fact, made findings of fact at paragraphs 169-177 of the RO, none of which were challenged by Bay County, that Bay County’s model does not accurately predict drawdowns. 00131431-1
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Petitioners proved that the proposed permit is inconsistent with the public interest.
The
Governing Board is not required to rule on any exception that does not clearly identify the disputed portion of the RO by page number or paragraph, that does not identify the legal basis for the exception or that does not include appropriate citations to the record.
Section
120.57(1)(k), Florida Statutes. Bay County fails to identify a legal basis for this exception and therefore the Governing Board is not required to rule on it. Bay County argues that the ALJ “missed the point of this permit,” suggesting that permit as sought by Bay County and as recommended for approval by the District would solely allow use of the water allocated through the permit in cases of emergency. What the ALJ concluded, based on findings of fact that are not challenged by Bay County, is that the permit would not restrict usage to production of water in times of emergency and for that reason it did not differ from any other water use permit, in that the permitted quantity would be available for use by Bay County the year around, emergency or no emergency. Further, the ALJ concluded, again based on findings of fact not contested by Bay County, that even if the proposed use was tightly restricted to times of emergency, the quantity needed in emergency circumstances was never established by Bay County nor was it shown that the demand to be supplied through such withdrawals would be restricted to essential uses. By failing to take exception to the findings of fact on which the conclusion of law in paragraph 249 is based, Bay County has waived any objection to those findings of fact. Envtl. Coalition of Florida, Inc. v. Broward County, 586 So. 2d 1212, 1213 (Fla. 1st DCA 1991); Colonnade Medical Center, Inc. v. State, 847 So. 2d 540, 542 (Fla. 4th DCA 2003). For all of these reasons the ALJ determined Bay County’s application was inconsistent with the public interest.
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The ALJ was under no obligation to remake the permit by
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recommending new conditions to be appended to the permit in an attempt to make the use consistent with the public interest. To the extent that Bay County has articulated an alternative conclusion of law, based on the unchallenged facts as found by ALJ, Bay County’s proposed conclusion of law on this point is not as or more reasonable than the ALJ’s. For all of the foregoing reasons, Bay County’s Exception No. 4 is denied. Bay County’s Exception No. 5 In its Exception No. 5, Bay County asserts that the ALJ’s conclusions could better be considered as recommended conditions to a permit, rather than reasons for denial.
The
Governing Board is not required to rule on any exception that does not clearly identify the disputed portion of the RO by page number or paragraph, that does not identify the legal basis for the exception or that does not include appropriate citations to the record.
Section
120.57(1)(k), Florida Statutes. Bay County provides no legal basis for this exception and except for a fleeting mention of the conclusion of law found in paragraph 265 of the RO, fails to specifically cite where the conclusions it disputes appear. For these reasons, the Governing Board is not required to rule on this exception. To the extent this exception is directed to the conclusions of law concerning the consistency of the proposed permit with the public interest, these issues have been ruled on and denied in Exception No. 4 above. Bay County seems, primarily to focus its disagreement with the determination by the ALJ that use of 30 MGD by Bay County in the case of emergency would be “excessive.” There is a statement in paragraph 249 of the RO (also addressed in Exception No. 7 below), a conclusion of law, to the effect that use of the quantities proposed by Bay County for emergencies for the period of time proposed in the permit would be excessive. This conclusion supports the ALJ’s determination that Bay County failed to establish a need for this quantity for this use. To the
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extent Bay County’s complaint is with the ALJ conclusions regarding the reasonableness of allocating 30 MGD to supply essential uses in the event of an emergency in Bay County, these conclusions are supported by findings of fact which have not been challenged by Bay County and therefore, there is no basis for overruling them. By failing to take exception to the findings of fact on which the conclusion of law in paragraph 249 is based, Bay County has waived any objection to those findings of fact. Envtl. Coalition of Florida, Inc. v. Broward County, 586 So. 2d 1212, 1213 (Fla. 1st DCA 1991); Colonnade Medical Center, Inc. v. State, 847 So. 2d 540, 542 (Fla. 4th DCA 2003). Further, Bay County’s proposed alternative conclusion of law, to the extent it can be discerned, is not as or more reasonable than the ALJ’s conclusion of law. For the foregoing reasons, Bay County’s Exception No. 5 is denied. Bay County’s Exception No. 6 Bay County’s Exception No. 6 contends the “finding” in paragraph 268 of the RO “also reflects the misplaced burden of proof apparent in this recommended order.” Paragraph 268 is a conclusion of law that summarizes the reasons for the ALJ’s conclusion that the permit is not consistent with the public interest. To the extent that through this exception Bay County again seeks to establish that the ALJ did not correctly interpret and apply Section 120.569(2)(p), Florida Statutes, regarding the allocation of the burden or proof in this proceeding, this issue was addressed and ruled on in Exception No. 1 above by the denial of Exception No. 1. To the extent Bay County attempts to make the argument that some portion of paragraph 268 is not supported by competent substantial evidence, paragraph 268 is a conclusion of law and not a finding of fact.
Irrespective, paragraph 268 is a conclusion based on findings of fact, supported by
competent substantial evidence in the record, which were not challenged by Bay County. By failing to take exception to the findings of fact on which the conclusion of law in paragraph 249
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is based, Bay County has waived any objection to those findings of fact. Envtl. Coalition of Florida, Inc. v. Broward County, 586 So. 2d 1212, 1213 (Fla. 1st DCA 1991); Colonnade Medical Center, Inc. v. State, 847 So. 2d 540, 542 (Fla. 4th DCA 2003). For the foregoing reasons, Bay County’s Exception No. 6 is denied. Bay County’s Exception No. 7 Bay County’s Exception No. 7 asserts that the ALJ’s “finding” in paragraph 249, that the emergency use proposed in the permit of 30 MGD for up to 52 consecutive days “is excessive,” is clearly erroneous. Paragraph 249 is a conclusion of law included in the section of the RO wherein the ALJ concludes that Bay County did not establish its need for quantity of water sought in the permit. There are specific findings of fact made by the ALJ (see paragraphs 211214 of the RO) dealing with amounts of water required by Bay County in the event of emergency. These findings of fact which were unchallenged by Bay County support all elements of the conclusion of law found in paragraph 249 of the RO. By failing to take exception to the findings of fact on which the conclusion of law in paragraph 249 is based, Bay County has waived any objection to those findings of fact. Envtl. Coalition of Florida, Inc. v. Broward County, 586 So. 2d 1212, 1213 (Fla. 1st DCA 1991); Colonnade Medical Center, Inc. v. State, 847 So. 2d 540, 542 (Fla. 4th DCA 2003). Bay County’s assertion that the number in the permit for emergency purposes is irrelevant because there would be no significant impact on resources is without merit. First, the ALJ found that the permit as proposed allocates water for both emergency and non-emergency needs so the use is not restricted to emergencies. Second, demonstration of need is an essential component of establishing that a use of water is a reasonable beneficial use thereof. The facts as determined by the ALJ, based on competent substantial evidence in the record, established that
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Bay County’s essential needs when emergencies occur do not equal or exceed 30 MGD, but is substantially less. For the foregoing reasons, Bay County’s Exception No. 7 is denied. Bay County’s Exception No. 8 Bay County’s Exception No. 8 takes issue with the ALJ’s determination that Washington County established standing in this proceeding to challenge Bay County’s permit. Bay County contends the evidence offered by Washington County failed to establish that Washington County will suffer an injury-in-fact if the permit is approved as required by Agrico Chemical Co. v. Dep’t of Envtl. Protection, 406 So. 2d 478 (Fla. 4th DCA 1981). In order to establish the injuryin-fact element of standing, it is only necessary for a party such as Washington County to prove that it has substantial rights or interests that reasonably could be affected by the District’s action on the permit. St. Johns Riverkeeper, Inc. v. St. Johns River Water Management District, 54 So. 3d 1051 (Fla. 5th DCA 2011); Gibby Family Trust v. Blueprint 2000 and Dep’t of Envtl. Protection, Case No. 10-9292 (DOAH 2011).
It is not necessary that a party prove the
reasonably anticipated injury will actually occur to establish standing. In paragraphs 95-98 of the RO there are findings of fact that are unchallenged by Bay County. These findings, which are based on competent substantial evidence in the record, establish that there are extensive wetland and surface water features in Washington County that will likely be impacted by withdrawals proposed in Bay County’s permit. These finding further establish that Washington County has a substantial interest in protecting, preserving and conserving the wetland and surface water features within its boundaries.
Additionally, at
paragraph 182, a finding of fact also not challenged by Bay County, the ALJ determines that approximately 4,200 acres of wetlands, a majority of which are located in Washington County,
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are likely to be harmed by the drawdowns predicted by Bay County’s groundwater model. There are still other unchallenged findings of fact describing potential adverse environmental impacts in Washington County if the permit is granted. Counties in Florida have various statutory duties and responsibilities with respect to planning for water management and conservation, sufficient to give them an interest in any activity of the state or of the agencies of the state as may appear to affect those duties and responsibilities. Osceola County v. St. Johns River Water Management District, 486 So. 2d 616, 617 (Fla. 5th DCA 1986). Washington County presented sufficient evidence to establish its standing to participate in this proceeding and through that evidence demonstrated that its interests could reasonably be affected by Bay County’s proposed permit. For the foregoing reasons, Bay County’s Exception No. 8 is denied.
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FINAL ORDER ACCORDINGLY, IT IS HEREBY ORDERED THAT: 1.
The Recommended Order dated July 26, 2012, a copy of which is attached hereto
as Exhibit “A” is adopted in its entirety. 2.
Water Use Permit Application No. 107057 is denied.
DONE AND ORDERED this ___________ day of September, 2012, in Havana, Florida. NORTHWEST FLORIDA WATER MANAGEMENT DISTRICT
_________________________________________ George Roberts Governing Board Chair RENDERED this _________ day of __________________________, 2012
_________________________________________ District Clerk
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WASHINGTON COUNTY, Petitioner, and THE NORTHERN TRUST COMPANY, AS THE SOLE TRUSTEE OF THE JAMES L. KNIGHT CHARITABLE TERM TRUST, Intervenor, vs.
NFWMD Permit No. 107057 DOAH Case No. 10-2983
BAY COUNTY AND NORTHWEST FLORIDA WATER MANAGEMENT DISTRICT, Respondents. ___________________________________/ THE NORTHERN TRUST COMPANY, Petitioner, vs.
NFWMD Permit No. 107057 DOAH Case No. 10-2984
BAY COUNTY AND NORTHWEST FLORIDA WATER MANAGEMENT DISTRICT, Respondents. ___________________________________/
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JAMES G. MURFEE AND LEE LAPENSOHN, Petitioners,
NFWMD Permit No. 107057 DOAH Case No. 10-10100
vs. NORTHWEST FLORIDA WATER MANAGEMENT DISTRICT, Respondent, and BAY COUNTY BOARD OF COUNTY COMMISSIONERS, Intervenor. ___________________________________/
FINAL ORDER Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge (“ALJ”), David M. Maloney, held a formal administrative hearing in this matter on September 19-21, 26-30, October 3-7, 10, and 11, 2011, in Tallahassee, Florida. On July 27, 2012, the ALJ submitted a Recommended Order (“RO”) to the Northwest Florida Water Management District (“District”). Bay County (Respondent in Case Nos. 10-2983 and 10-2984 and Intevenor in Case No. 10-10100) timely filed exceptions to the Recommended Order. Petitioners Washington County and The Northern Trust Company, as the Sole Trustee of the James L. Knight Charitable Term Trust (“Northern Trust”) , each timely filed responses to the exceptions filed by Bay County. This matter came before the Governing Board of the District on September 26, 2012 for final agency action and entry of a Final Order herein.
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1. STATEMENT OF THE ISSUE The general issue before the District is whether to adopt the Recommended Order as the District’s Final Order, or to reject or modify the Recommended Order in whole or in part, in accordance with Section 120.57(1)(l), Florida Statutes. The specific issue is whether water use permit application no. 107057, submitted to the Northwest Florida Water Management District (“District”) by Bay County, meets the conditions for issuance of a permit as set forth in Section 373.223, Florida Statutes, and Chapter 40A-2, Florida Administrative Code. The application from Bay County reviewed and evaluated by the ALJ was for use of 5 million gallons per day (“MGD”), annual daily average of groundwater from the Floridan aquifer, with a maximum daily withdrawal of 30 MGD for no more than 60 days per year (with a maximum of 52 consecutive days), and a maximum monthly withdrawal amount of 775 million gallons.
The use
classifications for the proposed use were Public Supply and Industrial use.
The ALJ
recommended that the application be denied. 2. STANDARD OF REVIEW The rules regarding an agency’s consideration of and action on exceptions to a recommended order are well established in Florida law. Section 120.57(1)(l), Florida Statutes, establishes specific standards for agency review of findings of fact as well as for agency review of conclusions of law. Review of Findings of Fact A reviewing agency may not reject or modify findings of fact, unless the agency first determines, from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence or that the proceedings below did not comply with essential requirements of law. Section 120.57(1)(l), Florida Statutes. The
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term “competent substantial evidence” means evidence sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. Perdue v. TJ Palm Associates, Ltd., 755 So. 2d 660, 665-666 (Fla. 4th DCA 1999), quoting from and following Degroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). The term “competent substantial evidence” refers to the existence of some quantity of evidence for each essential element of a finding and to the legality and admissibility of that evidence. Scholastic Book Fairs, Inc. v. Unemployment Appeals Comm’n., 671 So 2d 287, 289 n.3 (Fla. 5th DCA 1996). An agency may not disturb a finding of fact supported by any competent substantial evidence from which the finding could be reasonably inferred.
Freeze v. Dep’t of
Transportation, 556 So. 2d 1204, 1205 (Fla. 5th DCA 1990); Berry v. Dep’t of Envtl. Reg., 530 So. 2d 1019, 1022 (Fla. 4th DCA 1988). The Governing Board may not reweigh evidence admitted in the proceeding below, may not resolve conflicts in the evidence and may not judge the credibility of witnesses or otherwise interpret evidence anew. Save Anna Maria, Inc. v. Dep’t of Transportation, 700 So. 2d 113, 118 (Fla. 2d DCA 1997; Brown v. Criminal Justice Standards & Training Comm’n, 667 So. 2d 977, 979 (Fla. 4th DCA 1996). The standard is not whether the record contains evidence contrary to the findings of fact in the recommended order, but whether any competent substantial evidence supports each finding in issue. Florida Sugar Cane League v. State Siting Bd., 580 So. 2d 846, 851 (Fla. 1st DCA 1991). Review of Conclusions of Law The Governing Board may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretations of administrative rules over which it has substantive jurisdiction, provided the reasons for such rejection or modification are stated with particularity
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and the Governing Board finds that such rejection or modification is as or more reasonable that the ALJ’s conclusion or interpretation. Section 120.57(1)9l), Florida Statutes. The Governing Board lacks subject matter jurisdiction to overturn an ALJ’s rulings on procedural and evidentiary issues. Barfield v. Dep’t of Health, 805 So. 2d 1008, 1012 (Fla. 1st DCA 2001) (the agency lacked jurisdiction to overturn an ALJ’s evidentiary ruling); Lane v. Dep’t of Envtl. Protection, 29 F.A.L.R. 4063 (DEP 2007) (the agency has no substantive jurisdiction over procedural issues, such as whether an issue was properly raised, and over an ALJ’s evidentiary rulings); Lardas v. Dep’t of Envtl. Protection, 28 F.A.L.R. 3844, 3846 (evidentiary rulings of the ALJ concerning the admissibility and competency of evidence are not matters within the agency’s substantive jurisdiction). In issuing its Final Order, the Governing Board is not required to rule on an exception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record. Section 120.57(1)(l), Florida Statutes. 3. RULINGS ON EXCEPTIONS Bay County’s Exception No. 1 Bay County’s first exception takes issue with three conclusions of law found in paragraphs 243, 259 and 268 of the RO.1
In paragraph 243, the ALJ concludes that the
Petitioners below were not required to show that the permit would, in fact, significantly harm or affect natural systems (a condition for issuance of the permit found in Rule 62-40.410(2)(p), Florida Administrative Code) in response to Bay County’s prima facie case, but rather, the Petitioner’s burden was to prove that Bay County did not provide reasonable assurances that
1
Bay County also cites to the “Statement of the Issue” found on page 6 of the RO in this exception, however, since this statement is neither a finding of fact or conclusion of law, no ruling is necessary on this statement. 00131431-1
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natural systems would not be significantly affected. In paragraph 259, the ALJ concludes as part of his determination that Bay County’s application did not meet the applicable reasonablebeneficial use criteria that Bay County and the District failed to prove that natural systems would not be significantly affected by the permit. Finally, in paragraph 268, the ALJ concludes as part of his determination that Bay County’s application was not consistent with the public interest, that Bay County was unable to show what drawdown would likely occur in the surficial aquifer in connection with proposed withdrawals and therefore, how natural systems would be affected by the permit. Bay County’s contention with regard to these three paragraphs is that they demonstrate that the ALJ erroneously interpreted and applied the law found in Section 120.569(2)(p), Florida Statutes, regarding the burden of proof in this proceeding. Bay County argues that once it established a prima facie case demonstrating entitlement to the permit, the burden of proof shifted to the Petitioners and to defeat the permit Petitioners were required to affirmatively prove that the permitting criteria cited in paragraphs 243, 259 and 268 were not met by the applicant, e.g., that Bay County’s proposed withdrawals would, in fact, significantly harm or affect natural systems. As noted in the preliminary discussion of this agency’s authority regarding review of the ALJ’s conclusions of law, Section 120.57(1), Florida Statutes provides that Governing Board may only modify or reject those conclusions of law over which it has substantive jurisdiction. The Governing Board does not have substantive jurisdiction regarding Chapter 120, Florida Statutes generally, nor does it have substantive jurisdiction specifically regarding the burden of proof in administrative proceedings as enunciated in Section 120.569(2)(p), Florida Statutes. The courts have clearly and repeatedly interpreted Section 120.57(1)(l), Florida Statutes to
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restrict an agency’s authority to reject or alter an ALJ’s interpretation of legal issues that are outside of the agency’s substantive jurisdiction, including interpretation of Chapter 120, Florida Statutes. Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So. 2d. 1140, 1143, 1144 (Fla. 2d DCA 2001) (Secretary of Florida Department of Environmental Protection had no authority to reject ALJ’s conclusion of law that doctrine of collateral estoppel did not prevent petitioner from introducing evidence concerning the scope of secondary impacts of permit because application of the doctrine of collateral estoppel is not a matter within the agency’s substantive jurisdiction); Barfield v. Dep’t of Health, 805 So. 2d 1008, 1011, 1012 (Fla. 1st DCA 2002) (Department of Health had no authority to reject ALJ’s determination that certain evidence was not admissible in an administrative hearing because admission of evidence in a Chapter 120 hearing is not within the Department’s substantive jurisdiction); G.E.L. Corp. v. Dep’t of Envtl. Protection, 875 So. 2d 1257, 1264 (Department correctly determined that it had no jurisdiction to reject ALJ determination that ALJ could not conduct hearing on request for attorney’s fees related to petition filed on permit issued by Department because Department had no substantive jurisdiction concerning Chapter 120, Florida Statutes or attorney’s fees statutes). See also, FINR II, Inc. v. CF Industries, 2012 WL 231774 (Florida Department of Environmental Protection Final Order 2012) (Department has no authority to modify or reject the ALJ’s procedural and evidentiary rulings under the summary hearing provisions of Section 120.574, Florida Statutes). The Governing Board has no substantive jurisdiction over Chapter 120, Florida Statutes, it does not have authority to modify or reject the ALJ’s conclusions of law concerning the ALJ’s interpretation and application of Section 120.569(2)(p), Florida Statutes. For this reason, Bay County’s Exception Number 1 is denied.
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Bay County’s Exception No. 2 In its Exception Number 2, Bay County objects to the ALJ’s findings of fact contained in paragraphs 225-229 of the RO.
In these findings the ALJ determined that two potential
alternatives existed to the groundwater withdrawal plan and associated wellfield proposed by Bay County that were not explored by Bay County and that neither Bay County nor the District presented an analysis of potential alternatives to the wellfield proposed by Bay County in its application. Bay County argues that these findings are irrelevant because there is no requirement that it conduct such an alternatives study; that Rule 62-40.410(2)(j), Florida Administrative Code, to the extent relevant, only requires an applicant to address the feasibility of reclaimed water, storm water, aquifer storage and recovery, brackish water and saltwater; and that the findings in these paragraphs are not supported by competent substantial evidence in the record. Bay County does not dispute the finding in paragraph 225 that evidence was offered that a wellfield with 10 MGD capacity could be constructed along an existing Bay County transmission line as an alternative to the proposed wellfield. Bay County’s dispute with the cited findings appears to be whether 10 MGD is the amount it actually needs in case of an emergency and whether the potential 10 MGD wellfield is feasible. No other findings in paragraphs 225 through 229 are specifically disputed by Bay County. The findings in paragraphs 225 through 229 are supported by competent substantial evidence in the record. The fact that there may be testimony contrary to the finding of fact made by the ALJ does not render the finding invalid. The standard is not whether the record contains evidence contrary to the findings of fact in the RO, but whether any competent substantial evidence supports the finding(s) in issue. Florida Sugar Cane League v. State Siting Bd., 580 So. 2d 846, 851 (Fla. 1st DCA 1991).
The
Governing Board may not reweigh evidence admitted in the hearing, may not resolve conflicts in
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evidence and may not judge the credibility of witnesses or otherwise interpret evidence anew. Save Anna Maria, Inc. v. Dep’t of Transportation, 700 So. 2d 113, 118 (Fla. 2d DCA 1997). As Bay County suggests, Rule 62-40.410(2)(j), Florida Administrative Code, does not specifically require a feasibility “study” of alternatives to the water source proposed in an application.
The Rule does, however, require the agency to consider the feasibility of
alternatives, thus, an applicant is required to submit information providing reasonable assurances to the agency demonstrating that alternative sources to the source proposed in an application are not feasible. A “study” is a common means by which an applicant demonstrates compliance with a permitting criterion such as this one. In this context the ALJ’s finding that no study of feasible alternatives was conducted by Bay County (paragraph 225) and that no analysis of alternatives was presented at the hearing (paragraph 229), neither of which is disputed by Bay County, is relevant to the issue of whether feasible alternatives were properly considered by District in its review of Bay County’s application. With regard to Bay County’s argument that the consideration of alternative sources required under Rule 62-40.410(2)(j), Florida Administrative Code is limited to “reclaimed water, stormwater, aquifer storage and recovery, brackish water and saltwater,” this position does not reflect the plain language of the Rule. The Rule requires consideration of the feasibility of “alternative sources such as reclaimed water, stormwater, aquifer storage and recovery, brackish water and salt water.” The qualifying words “such as” clearly mean the realm of alternatives to be considered is not limited to those specifically identified in the Rule. If there was an intention on the District’s or the Florida Department of Environmental Protection’s2 part to limit the consideration of alternatives solely to those listed in this provision, it is not evident
2
This criterion is incorporated by reference from Chapter 62-40, Florida Administrative Code, a rule chapter adopted by the Department. 00131431-1
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here or elsewhere in the Rule. For this reason, it was both appropriate and relevant for the ALJ to consider and address the feasibility of the two alternatives described in paragraphs 225-229 and the fact that these alternatives were not considered by Bay County or the District in determining whether Bay County’s proposed use is a reasonable-beneficial use and whether the use is consistent with the public interest. For the foregoing reasons, Bay County’s Exception No. 2 is denied. Bay County’s Exception No. 3 Bay County’s Exception No. 3 contends that the ALJ’s “finding” regarding the impact of Bay County’s proposed wellfield on natural systems is not based on competent substantial evidence. Bay County does not clearly identify the disputed portion of the RO by page number or paragraph and does not include appropriate and specific citations to the record in support of this exception. The Governing Board is not required to rule on any exception that does not clearly identify the disputed portion of the RO by page number or paragraph, that does not identify the legal basis for the exception or that does not include appropriate citations to the record. Section 120.57(1)(k), Florida Statutes. Exception No. 3 does not identify a specific finding of fact to which the objection is directed and provides little in the way of citations to the record to support the argument, therefore, The Governing Board is not required to rule on this exception. Bay County mentions paragraph 243 of the RO as being “tied in” with the issue of impacts to natural systems, but paragraph 243 is a conclusion of law, not a finding of fact. As a conclusion of law, paragraph 243 of the RO concerns the burden of proof in the proceeding in the proceeding below, an issue raised in Bay County’s Exception No. 1, which is ruled on and
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denied above. To the extent this exception is directed to the burden of proof issue, that issue has been addressed in the ruling on Exception No. 1 Insofar as Bay County seeks to attack the factual underpinnings of the conclusion of law found in paragraph 243 of the RO, there are numerous findings of fact by the ALJ in the RO (see for example paragraphs 182-183, 190-201) that are unchallenged by Bay County that address the adverse impacts that would and could occur to natural systems, based on the drawdowns from the proposed wellfield that were predicted to occur by the groundwater model relied on by Bay County, if that model was capable of accurately predicting such drawdowns.3 By failing to take exception to the findings of fact on which the conclusion of law in paragraph 249 is based, Bay County has waived any objection to those findings of fact. Envtl. Coalition of Florida, Inc. v. Broward County, 586 So. 2d 1212, 1213 (Fla. 1st DCA 1991); Colonnade Medical Center, Inc. v. State, 847 So. 2d 540, 542 (Fla. 4th DCA 2003). There is competent substantial evidence in the record that harm to natural systems would result if the withdrawals proposed by Bay County were implemented and the drawdowns predicted by Bay County’s model in fact occurred. The Governing Board may not reweigh evidence admitted in the hearing, may not resolve conflicts in evidence and may not judge the credibility of witnesses or otherwise interpret evidence anew. Save Anna Maria, Inc. v. Dep’t of Transportation, 700 So. 2d 113, 118 (Fla. 2d DCA 1997). For all of the foregoing reasons, Bay County’s Exception No. 3 is denied. Bay County’s Exception No. 4 Bay County’s Exception No. 4 appears to be directed to the conclusions of law found in paragraphs 262 through 268 of the RO through which, collectively, the ALJ concludes that the
3
The ALJ, in fact, made findings of fact at paragraphs 169-177 of the RO, none of which were challenged by Bay County, that Bay County’s model does not accurately predict drawdowns. 00131431-1
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Petitioners proved that the proposed permit is inconsistent with the public interest.
The
Governing Board is not required to rule on any exception that does not clearly identify the disputed portion of the RO by page number or paragraph, that does not identify the legal basis for the exception or that does not include appropriate citations to the record.
Section
120.57(1)(k), Florida Statutes. Bay County fails to identify a legal basis for this exception and therefore the Governing Board is not required to rule on it. Bay County argues that the ALJ “missed the point of this permit,” suggesting that permit as sought by Bay County and as recommended for approval by the District would solely allow use of the water allocated through the permit in cases of emergency. What the ALJ concluded, based on findings of fact that are not challenged by Bay County, is that the permit would not restrict usage to production of water in times of emergency and for that reason it did not differ from any other water use permit, in that the permitted quantity would be available for use by Bay County the year around, emergency or no emergency. Further, the ALJ concluded, again based on findings of fact not contested by Bay County, that even if the proposed use was tightly restricted to times of emergency, the quantity needed in emergency circumstances was never established by Bay County nor was it shown that the demand to be supplied through such withdrawals would be restricted to essential uses. By failing to take exception to the findings of fact on which the conclusion of law in paragraph 249 is based, Bay County has waived any objection to those findings of fact. Envtl. Coalition of Florida, Inc. v. Broward County, 586 So. 2d 1212, 1213 (Fla. 1st DCA 1991); Colonnade Medical Center, Inc. v. State, 847 So. 2d 540, 542 (Fla. 4th DCA 2003). For all of these reasons the ALJ determined Bay County’s application was inconsistent with the public interest.
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recommending new conditions to be appended to the permit in an attempt to make the use consistent with the public interest. To the extent that Bay County has articulated an alternative conclusion of law, based on the unchallenged facts as found by ALJ, Bay County’s proposed conclusion of law on this point is not as or more reasonable than the ALJ’s. For all of the foregoing reasons, Bay County’s Exception No. 4 is denied. Bay County’s Exception No. 5 In its Exception No. 5, Bay County asserts that the ALJ’s conclusions could better be considered as recommended conditions to a permit, rather than reasons for denial.
The
Governing Board is not required to rule on any exception that does not clearly identify the disputed portion of the RO by page number or paragraph, that does not identify the legal basis for the exception or that does not include appropriate citations to the record.
Section
120.57(1)(k), Florida Statutes. Bay County provides no legal basis for this exception and except for a fleeting mention of the conclusion of law found in paragraph 265 of the RO, fails to specifically cite where the conclusions it disputes appear. For these reasons, the Governing Board is not required to rule on this exception. To the extent this exception is directed to the conclusions of law concerning the consistency of the proposed permit with the public interest, these issues have been ruled on and denied in Exception No. 4 above. Bay County seems, primarily to focus its disagreement with the determination by the ALJ that use of 30 MGD by Bay County in the case of emergency would be “excessive.” There is a statement in paragraph 249 of the RO (also addressed in Exception No. 7 below), a conclusion of law, to the effect that use of the quantities proposed by Bay County for emergencies for the period of time proposed in the permit would be excessive. This conclusion supports the ALJ’s determination that Bay County failed to establish a need for this quantity for this use. To the
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extent Bay County’s complaint is with the ALJ conclusions regarding the reasonableness of allocating 30 MGD to supply essential uses in the event of an emergency in Bay County, these conclusions are supported by findings of fact which have not been challenged by Bay County and therefore, there is no basis for overruling them. By failing to take exception to the findings of fact on which the conclusion of law in paragraph 249 is based, Bay County has waived any objection to those findings of fact. Envtl. Coalition of Florida, Inc. v. Broward County, 586 So. 2d 1212, 1213 (Fla. 1st DCA 1991); Colonnade Medical Center, Inc. v. State, 847 So. 2d 540, 542 (Fla. 4th DCA 2003). Further, Bay County’s proposed alternative conclusion of law, to the extent it can be discerned, is not as or more reasonable than the ALJ’s conclusion of law. For the foregoing reasons, Bay County’s Exception No. 5 is denied. Bay County’s Exception No. 6 Bay County’s Exception No. 6 contends the “finding” in paragraph 268 of the RO “also reflects the misplaced burden of proof apparent in this recommended order.” Paragraph 268 is a conclusion of law that summarizes the reasons for the ALJ’s conclusion that the permit is not consistent with the public interest. To the extent that through this exception Bay County again seeks to establish that the ALJ did not correctly interpret and apply Section 120.569(2)(p), Florida Statutes, regarding the allocation of the burden or proof in this proceeding, this issue was addressed and ruled on in Exception No. 1 above by the denial of Exception No. 1. To the extent Bay County attempts to make the argument that some portion of paragraph 268 is not supported by competent substantial evidence, paragraph 268 is a conclusion of law and not a finding of fact.
Irrespective, paragraph 268 is a conclusion based on findings of fact, supported by
competent substantial evidence in the record, which were not challenged by Bay County. By failing to take exception to the findings of fact on which the conclusion of law in paragraph 249
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is based, Bay County has waived any objection to those findings of fact. Envtl. Coalition of Florida, Inc. v. Broward County, 586 So. 2d 1212, 1213 (Fla. 1st DCA 1991); Colonnade Medical Center, Inc. v. State, 847 So. 2d 540, 542 (Fla. 4th DCA 2003). For the foregoing reasons, Bay County’s Exception No. 6 is denied. Bay County’s Exception No. 7 Bay County’s Exception No. 7 asserts that the ALJ’s “finding” in paragraph 249, that the emergency use proposed in the permit of 30 MGD for up to 52 consecutive days “is excessive,” is clearly erroneous. Paragraph 249 is a conclusion of law included in the section of the RO wherein the ALJ concludes that Bay County did not establish its need for quantity of water sought in the permit. There are specific findings of fact made by the ALJ (see paragraphs 211214 of the RO) dealing with amounts of water required by Bay County in the event of emergency. These findings of fact which were unchallenged by Bay County support all elements of the conclusion of law found in paragraph 249 of the RO. By failing to take exception to the findings of fact on which the conclusion of law in paragraph 249 is based, Bay County has waived any objection to those findings of fact. Envtl. Coalition of Florida, Inc. v. Broward County, 586 So. 2d 1212, 1213 (Fla. 1st DCA 1991); Colonnade Medical Center, Inc. v. State, 847 So. 2d 540, 542 (Fla. 4th DCA 2003). Bay County’s assertion that the number in the permit for emergency purposes is irrelevant because there would be no significant impact on resources is without merit. First, the ALJ found that the permit as proposed allocates water for both emergency and non-emergency needs so the use is not restricted to emergencies. Second, demonstration of need is an essential component of establishing that a use of water is a reasonable beneficial use thereof. The facts as determined by the ALJ, based on competent substantial evidence in the record, established that
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Bay County’s essential needs when emergencies occur do not equal or exceed 30 MGD, but is substantially less. For the foregoing reasons, Bay County’s Exception No. 7 is denied. Bay County’s Exception No. 8 Bay County’s Exception No. 8 takes issue with the ALJ’s determination that Washington County established standing in this proceeding to challenge Bay County’s permit. Bay County contends the evidence offered by Washington County failed to establish that Washington County will suffer an injury-in-fact if the permit is approved as required by Agrico Chemical Co. v. Dep’t of Envtl. Protection, 406 So. 2d 478 (Fla. 4th DCA 1981). In order to establish the injuryin-fact element of standing, it is only necessary for a party such as Washington County to prove that it has substantial rights or interests that reasonably could be affected by the District’s action on the permit. St. Johns Riverkeeper, Inc. v. St. Johns River Water Management District, 54 So. 3d 1051 (Fla. 5th DCA 2011); Gibby Family Trust v. Blueprint 2000 and Dep’t of Envtl. Protection, Case No. 10-9292 (DOAH 2011).
It is not necessary that a party prove the
reasonably anticipated injury will actually occur to establish standing. In paragraphs 95-98 of the RO there are findings of fact that are unchallenged by Bay County. These findings, which are based on competent substantial evidence in the record, establish that there are extensive wetland and surface water features in Washington County that will likely be impacted by withdrawals proposed in Bay County’s permit. These finding further establish that Washington County has a substantial interest in protecting, preserving and conserving the wetland and surface water features within its boundaries.
Additionally, at
paragraph 182, a finding of fact also not challenged by Bay County, the ALJ determines that approximately 4,200 acres of wetlands, a majority of which are located in Washington County,
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are likely to be harmed by the drawdowns predicted by Bay County’s groundwater model. There are still other unchallenged findings of fact describing potential adverse environmental impacts in Washington County if the permit is granted. Counties in Florida have various statutory duties and responsibilities with respect to planning for water management and conservation, sufficient to give them an interest in any activity of the state or of the agencies of the state as may appear to affect those duties and responsibilities. Osceola County v. St. Johns River Water Management District, 486 So. 2d 616, 617 (Fla. 5th DCA 1986). Washington County presented sufficient evidence to establish its standing to participate in this proceeding and through that evidence demonstrated that its interests could reasonably be affected by Bay County’s proposed permit. For the foregoing reasons, Bay County’s Exception No. 8 is denied.
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FINAL ORDER ACCORDINGLY, IT IS HEREBY ORDERED THAT: 1.
The Recommended Order dated July 26, 2012, a copy of which is attached hereto
as Exhibit “A” is adopted in its entirety. 2.
Water Use Permit Application No. 107057 is denied.
DONE AND ORDERED this ___________ day of September, 2012, in Havana, Florida. NORTHWEST FLORIDA WATER MANAGEMENT DISTRICT
_________________________________________ George Roberts Governing Board Chair RENDERED this _________ day of __________________________, 2012
_________________________________________ District Clerk
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