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Navigation:Home > Florida > Palm Beach Gardens > Seacoast Utility Authority
Seacoast Utility AuthorityWater Use Permit Steven Memberg, Section LeaderWater Use Regulation Division, Water Supply DepartmentJanuary 26, 2009
Seacoast Utility Authority Loxahatchee River Seacoast Utility Service Area
Seacoast Utility Authority • Utility Service Area includes: Palm Beach Gardens North Palm Beach Juno Beach Lake Park Unincorporated areas of PBC Hood Road Wellfield PBG Wellfield NPB Wellfield Burma Road Wellfield
Seacoast Utility Authority • Originally permitted in 1976 • Current Allocation • Population 101,664 (2005) • Per Capita 190 • Annual 19.31 MGD • Proposed Allocation • Population 102,423 (2012) • Per Capita 190 • Annual 19.46 MGD
Minimum Flows and Levels (MFL) covers: Northwest Fork of the Loxahatchee River (G-92 to River Mile 6) Consumptive Use Permit Rule Protections for the Loxahatchee
Minimum Flows and Levels (MFL) covers: Northwest Fork of the Loxahatchee River (G-92 to River Mile 6) Including tributaries: Kitching Creek Hobe Grove Ditch Cypress Creek Consumptive Use Permit Rule Protections for the Loxahatchee
Minimum Flows and Levels (MFL) MFL violation occurs when an exceedance occurs more than once in a six year period. Flows over Lainhart Dam decline below 35 cfs for more than 20 consecutive days. Average daily salinity concentration on a 20-day rolling average exceeds two parts per thousand at river seacoast utility authority 9.2 Northwest Fork is not currently meeting the MFL, therefore rule requires implementation of a recovery strategy Consumptive Use Permit Rule Protections for the Loxahatchee
Recovery Strategy One component of recovery strategy is the implementation of the Regional Water Availability Rule Consumptive Use Permit Rule Protections for the Loxahatchee • “requested allocation will not cause a net increase in the volume or cause seacoast utility authority change in the timing on a monthly basis of surface and ground water withdrawn from …the North Palm Beach County / Loxahatchee River Watershed Waterbodies over that resulting from the base case”
Seacoast Utility Authority Loxahatchee River Seacoast Utility Service Area Loxahatchee River Watershed Waterbodies
Regional Water Availability Calibrated groundwater flow model Annual requested withdrawal of 8,084 MG modeled to accommodate two operating plans: Prime Scenario – Hood Road Wellfield Alternate 1 – Palm Beach Gardens Wellfield Transient model using a 27-month scenario simulating 1-in-10 drought conditions Seacoast Utility Authority
Seacoast Utility Authority
Regional Water Availability No net increase in the volume or change in timing on a monthly basis of surface and ground water withdrawn from the “Waterbodies” Minimum Flows and Levels (MFL) No direct or indirect withdrawal from MFL body No contribution to existing MFL violations Other environmental considerations Drawdown impacts and mitigation for wetlands in the wellfields’ cone of influence are still under evaluation. Staff Evaluation
94-002903 Seacoast Utility Authority vs. Pga National Golf Club And Sports Center, Ltd., And South Florida Water Management District
Recommended Order on Monday, February 6, 1995.
Recommended Order on Monday, February 6, 1995.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8SEACOAST UTILITY AUTHORITY, )
16vs. ) CASE NO. 94-2903
22PGA NATIONAL GOLF CLUB & SPORTS )
29CENTER, LTD., and SOUTH FLORIDA )
35WATER MANAGEMENT DISTRICT, )
45Pursuant to notice, a formal hearing was conducted in this matter on
57September 22, 1994, in West Palm Beach, Florida, before J. Stephen Menton, a
70duly designated Hearing Officer of the Division of Administrative Hearings.
81For Petitioner: Nathan E. Nason, Esquire
87Nason, Gildan, Yeager, Gerson and White
931645 Palm Beach Lakes Boulevard
100West Palm Beach, Florida 33401
105For Respondent Cecile I. Ross, Esquire
111South Florida Office of the General Counsel
118Water Manage- 3301 Gun Club Road
124ment District: West Palm Beach, Florida 33416-4680
133PGA National E. Lee Worsham, Esquire
139Golf Club and Honigman, Miller, Schwartz and Cohn
147Sports Center, 222 Lakeview Avenue, Suite 800
154Ltd.: West Palm Beach, Florida seacoast utility authority OF THE ISSUE
164The issue in this case is whether Seacoast Utility Authority's challenge to
176the South Florida Water Management District's proposed issuance of a water use
188permit to PGA National Golf Club and Sports Center, Ltd. in a critical water
202supply area should be upheld. As discussed below, the parties have stipulated
214that, in deciding to issue the permit, the South Florida Water Management
226District has not evaluated or considered whether the use of reclaimed water was
239either economically, environmentally or technically infeasible.
247On April 12, 1994, the staff of the South Florida Water Management District
260(the "District") recommended renewal of water use permit #50-00617-W (the
"271Permit") issued to PGA National Golf Club and Sports Center, Ltd. ("PGA") for
287golf course irrigation. The existing and proposed source of the water was the
300ground water table. The staff recommendation did not include a requirement for
312PGA to use reclaimed water as part of its golf course irrigation system.
325On April 28, 1994, Seacoast Utility Authority ("Seacoast") filed a Petition
338for Formal Administrative Hearing challenging the staff's recommendation to
347renew the Permit. The District forwarded the Petition to the Division of
359Administrative Hearings to conduct proceedings pursuant to Section 120.57(1),
368Florida Statutes. The case was initially assigned to Hearing Officer Joyous D.
381By Notice of Hearing dated June 23, 1994, Hearing Officer Parrish scheduled
393a formal hearing for September first hawaiian bank lahaina hours through 22, 1994. Prior to the hearing, the
407parties raised a number of legal issues. PGA filed a Motion to Dismiss
420Seacoast's Petition and a Motion to Stay and for a Protective Order. The
433District filed a Motion to Strike/Motion to Limit the Issues. Seacoast filed a
446Memorandum in Opposition to the South Florida Water Management District's Motion
457to Strike/Motion to Limit Issues and a Memorandum of Law in opposition to PGA's
471Motion to Stay and for Protective Order. Hearing Officer Parrish conducted a
483telephone conference hearing on September 6, 1994 on the various legal issues
495raised by the parties. The parties apparently agreed during the telephone
506conference hearing to bifurcate fifth third bank car loan login hearing process to address certain threshold
517legal issues raised in the various motions before embarking on extensive
528discovery and hearing preparation.
532Following the September 6 telephone conference hearing, Hearing Officer
541Parrish entered an Order Granting Motion to Limit Issues dated September 14,
5531994. That Order provided as follows:
5591. The hearing. . scheduled for September 22, 1994, shall be limited to
574a determination of whether the South Florida Water Management District's
584procedures for reviewing water use permits concerning use of reclaimed water
595comport with applicable rules.
5992. As the resolution of the foregoing issue may be dispositive of the
612matter, a recommended order may be entered with jurisdiction being relinquished
623to the agency. However, if the resolution of the foregoing does not result in a
638recommended order, jurisdiction may be retained to allow further hearing on the
650applicant's request for a water use permit (50-000617-W).
658Shortly before the commencement of the formal hearing, the case was
669transferred to Hearing Officer J. Stephen Menton, who conducted the hearing as
681scheduled. During the hearing, the parties agreed that the issue of Seacoast's
693standing to challenge the District's proposed issuance of the Permit should also
705be resolved in the first phase of the proceeding. Thus, at the hearing on
719September 22, all parties were afforded an opportunity to present evidence and
731legal argument on the standing issue as well as on the question of whether the
746District's procedures for reviewing water use permit applications comports with
756the applicable statutes and rules. The parties have deferred presentation of
767evidence and argument on the other issues raised by the Petition and the various
781motions that have been filed. PGA specifically reserved its right to assert an
794entitlement to a backup source of water if it is required to utilize reclaimed
809At the hearing, Seacoast presented the testimony of one witness, Rim
820Bishop, the executive director of Seacoast. The District presented the
830testimony of William Scott Burns, the Director of the Water Use Division for the
844District's Regulation Department, who was accepted as an expert in water use
857At the request of the District, official recognition has been taken of Part
870II of Chapter 373, Florida Statutes, Chapter 40E-2, Florida Administrative Code,
881the Basis of Review of Water Use Permit Applications within the South Florida
894Water Management District (the "Basis of Review") and Chapter 17-40, Florida
906Administrative Code (the "State Water Policy"). The District's composite
916Exhibit 1 includes all of the matters that were officially recognized. The
928parties also submitted a document entitled Stipulated Facts which was marked as
940the District's Exhibit 2 during the hearing. Seacoast utility authority Exhibit was accepted without
953A transcript of the hearing has been filed. All parties have submitted
965proposed recommended orders in accordance with the schedule established at the
976conclusion of the hearing. In addition, Seacoast filed Seacoast Utility
986Authority's Post-Hearing Memorandum which addresses a number of the legal issues
997raised in this case. All of the submittals have been reviewed and considered in
1011the preparation of this Recommended Order. A ruling on each of the parties
1024proposed findings of fact is included in the Appendix to this Recommended Order.
1037FINDINGS OF FACT
1040Based upon the evidence adduced at the hearing and the entire record in
1053this proceeding, the following findings of fact are made:
10621. Seacoast is a publicly owned water and sewer utility which operates a
1075wastewater treatment facility in Palm Beach County, Florida. Seacoast's service
1085area is bounded on the south by Riviera Beach and on the north by the Town of
11032. Seacoast operates four treatment plants: two water plants and two
11163. Seacoast's regional wastewater facility currently generates
1123approximately six (6) million gallons per day ("MGD") of reclaimed water and is
1138permitted by the Florida Department of Environmental Protection ("DEP") as an
1151eight (8) MGD wastewater treatment plant.
11574. As discussed in more detail in the Conclusions of Law below, the
1170Florida Legislature and DEP have sought to encourage the reuse of reclaimed
1182water. This policy is one of the many sometimes competing goals that are
1195supposed to be taken into account in the water use permitting process.
12075. Until a few years ago, the treated effluent from one of Seacoast's
1220wastewater plants was directly discharged to nearby surfacewater. During the
1230last four years, Seacoast installed a pumping station and five miles worth of
1243transmission lines to deliver all of its treated effluent to its regional
1255wastewater facility. Seacoast claims that these efforts were prompted by its
1266interpretation of changing regulations and a perceived regulatory preference for
1276reuse of water.1 Although Seacoast claims that there has been a change in
1289regulatory emphasis in favor of reuse of reclaimed water, Seacoast is not under
1302a mandate from any court or agency to sell or utilize any specific amount of
1317reclaimed water. It does appear that a deep injection well used by Seacoast for
1331disposal of wastewater is not or was not operating as designed. Seacoast was
1344apparently obligated to construct reclaimed water facilities at its wastewater
1354treatment plant as part of its permit from DEP for the injection well. There
1368was no requirement that the reclaimed water be sold or otherwise utilized.
13806. The intended primary disposal for Seacoast's reclaimed water is reuse.2
1391Seacoast's wastewater treatment plant provides irrigation quality reclaimed
1399water. Seacoast tries to sell the reclaimed water for irrigation use in an
1412effort to recoup the costs incurred in constructing the facilities necessary to
1424reclaim the water. Backup disposal is achieved through injection down a 3300
1436feet deep injection well into the boulder zone. Once the reclaimed water is
1449injected down the well, it is unavailable for reuse.
14587. The evidence suggests that there are other possible utilizations
1468available for Seacoast's reclaimed water including sale to another utility
1478and/or backup recharge to preserve wetlands during periods of high pumpage. For
1490example, Seacoast is apparently in the process of applying for the necessary
1502permits to utilize a portion of its reclaimed water to prevent harm to wetlands
1516adjacent to its Hood Road Well Field by constructing an hydraulic barrier.
15288. At all times pertinent to this proceeding, only approximately 1.2 MGD
1540of the reclaimed water generated by Seacoast was being reused. The remaining
1552approximately 5 MGD was disposed of through the injection well.
15629. PGA owns and operates three (3) golf courses in Palm Beach County
1575within Seacoast's service area. PGA's golf courses are located within an area
1587that has been designated by the District as a Critical Water Supply Problem
1600Area. Critical Water Supply Problems Areas are geographical regions where the
1611available water supply due to the potential for saltwater intrusion, wetland
1622impacts, or impacts to existing legal uses, is predicted not to meet water
1635demands that are projected during the next 20 years. See, Chapter 40E-23,
1647Florida Administrative Code. The use of reclaimed water is not mandated in such
1660areas. However, the District's Rules seek to insure the optimal utilization of
1672alternative sources of water in such areas to minimize the potential harm newburyport five cents savings bank resources.
168710. It is not clear from the evidence presented in this case when PGA
1701first obtained the Permit from the District for golf course irrigation. The
1713Permit allows PGA to use the groundwater table as the source of water for its
1728irrigation. Before its expiration, PGA timely sought renewal of the Permit.
173911. On April 12, 1994, the District staff recommended renewal of PGA's
1751Permit. The staff recommendation would allow PGA to continue using the
1762groundwater table as the source of its water. The recommendation did not
1774contain a requirement for PGA to use any reclaimed water as part of its golf
1789course irrigation system.
179212. Seacoast became aware of PGA's application to renew its Permit through
1804a routine review of all water use permit applications made to the District by
"1818potential reclaimed water users in [its] service area." Seacoast filed a
1829Petition for Formal Administrative Hearing challenging the District staff's
1838recommendation to renew PGA's Permit.
184313. In its Petition, Seacoast alleged that its substantial interests would
1854be affected by the renewal of the Permit because Seacoast's ability to achieve
1867the State of Florida's goals of conservation and environmental protection
1877depends upon PGA, and other similar country clubs, being required to consume
1889reclaimed water. Seacoast contends that the staff recommendation immediately
1898eliminates a major potential consumer of Seacoast's reclaimed water which
1908purportedly impairs Seacoast's ability to meet state objectives for reuse of
1919reclaimed water and results in the undesirable continued disposal of reclaimed
1930water via deep well injection.
193514. In connection with its challenge to the proposed renewal of PGA's
1947Permit, Seacoast has stipulated that PGA's proposed withdrawals from the
1957groundwater table would not cause harm to the water resources of the District.
197015. Seacoast also admits that it has never evaluated whether it would be
1983environmentally injured by PGA's withdrawals from the groundwater table and/or
1993whether the proposed use by PGA is wasteful.
200116. The District does not currently have any goals for the utilization of
2014reclaimed water on a regional basis. Instead, the District oversight of the
2026utilization of reclaimed water is done on a permit by permit basis.
203817. As a general policy, the District will not accept a water use permit
2052application in an area of critical water shortage unless a reuse feasibility
2064determination is included. The District's rules do not currently contain any
2075guidelines as to how the determination of feasibility is to be made, nor are
2089there any criteria for reviewing an applicant's determination of feasibility.
2099As discussed below, the District does not even consider the applicant's reuse
2111feasibility determination unless the proposed withdrawal is projected to result
2121in harm to the resources of the District. Even when harm to a resource is
2136projected, the District accepts an applicant's feasibility determination
2144regarding the use of reclaimed water without question or analysis. For the
2156other consumptive use criteria set forth in Rule 40E-2.301, the District
2167independently evaluates the applicant's conclusions to confirm that they are
217818. In frost bank hours corpus christi words, the District treats reclaimed water as an alternative
2190source of water in the event that an applicant's proposed water use is projected
2204to cause harm to the water resources of the District. If no harm is expected to
2220occur to water resources as a result of a proposed use, the District does not
2235review the applicant's determination of whether or not to use reclaimed water.
2247If harm is projected, the applicant is required to look at alternatives like
2260water conservation or utilization of water sources other than those proposed
2271(such as reclaimed water). The applicant is free to select any alternative that
2284mitigates the harm. Thus, even in a Critical Water Supply Area, an applicant
2297can mitigate concerns about harm to the resource without utilizing reclaimed
230919. In sum, under the District's current procedures, the use of reclaimed
2321water is never required. It is simply one alternative an applicant can utilize
2334to offset or mitigate projected harm to water resources (such as saltwater
2346intrusion, contamination, wetland drawdowns or existing legal use impacts) from
2356a proposed withdrawal. Even when the District staff concludes that an
2367applicant's proposed use will result in harm to water resources, the staff does
2380not critically review the applicant's determination of whether the use of
2391reclaimed water is economically, environmentally, or technically infeasible.
2399With respect to PGA's Permit, the District staff concluded that no harm to the
2413resource was predicted as a result of PGA's proposed use. Thus, PGA's
2425determination not to use reclaimed water was not evaluated or even considered.
243720. The District explains that its implementation of the permitting
2447program is based upon its interpretation that its primary responsibility is to
2459prevent harm to water resources. The District points out that there are a
2472number of factors to be considered in utilizing reclaimed water. These factors
2484include, but are not limited to, the cost of the reclaimed water, the cost of
2499retrofitting an irrigation system, the long-term availability of the reclaimed
2509supply and the availability of a back-up supply.
2517CONCLUSIONS OF LAW
252021. The Division of Administrative Hearings has jurisdiction over the
2530parties to and the subject matter of this proceeding. Section 120.57(1),
254322. The Water Management District has been granted the authority to design
2555and implement a permitting program for the consumptive use of water. See,
2567Section 373.219(1), Florida Statutes.
257123. In deciding whether to issue a water use permit, the District must
2584apply the criteria set forth 1st financial federal credit union routing number Part Seacoast utility authority of Chapter 373, Florida Statutes. The
2598statutory conditions for issuing a permit are set forth in Section 373.223(1).
2610Under that statute, an applicant must establish that the proposed use is a
"2623reasonable-beneficial" use as defined in Section 373.019(4), that the use will
2634not cause adverse impacts to legally existing users, and that the use is
2647consistent with the public interest.
265224. A "reasonable-beneficial use" is defined in Section 373.019(4) as "the
2663use of water in such quantity as is necessary for economic and efficient
2676utilization for a purpose and in a manner which is both reasonable and
2689consistent with the public interest."
269425. DEP has the adopted the State Water Policy, Rule 17-40.401, et. seq.,
2707Florida Administrative Code,3 which delineates a number of factors which a water
2720management district must consider in determining whether a proposed use is
"2731reasonable-beneficial." Among the factors to be considered are "the extent and
2742amount of harm caused," "whether the proposed use would significantly induce
2753salt water intrusion," "the amount of water which can be withdrawn without
2765causing harm to the resource," "the demonstrated need for the water," the long
2778term yield and suitability of the water source, the potential for flood damage
2791and public health impacts, and the "practicality of mitigating any harm by
2803adjusting the quantity or method of use." See, Rule 17-40.401(2)(b), (c), (e),
2815(f), (g), (l), (m), (n), (o), (p), and (q), Florida Administrative Code. In
2828addition, Subsection (j) provides that consideration should be given to "the
2839availability of reclaimed water for and the practicality of reuse, or the use of
2853waters of more suitable quality."
285826. To implement its permitting duties under the statute, the District has
2870adopted Rule 40E-2, Florida Administrative Code, which incorporates by reference
2880the Basis of Review For Water Use Permit Applications within the South Florida
2893Water Management District (the "Basis of Review").
290127. In reviewing permit applications, the District Water Use Division
2911applies the conditions for permit issuance set forth in Rule 40E-2.301, Florida
2923Administrative Code. This Rule sets forth a series of factors that the District
2936considers in determining whether an application satisfies the statutory
294628. Many of the considerations delineated in the State Water Policy have
2958been directly incorporated in the District's Rule. See, e. g., Rule 40E-
29702.301(1)(a), (c), and (d). In fact, Subsection (e) of the District's Rule
2982specifically provides that the factors set forth in the State Water Policy
2994should be considered.
299729. Subsection (f) of the District's Rule incorporates the protection
3007against interference with presently existing legal uses which is set forth in
3019the statute. Similarly, Subsection (i) incorporates the "public interest"
3028considerations provided for in Section 373.223, e t u t a t S a d i r o l F s .
305130. In applying the criteria set forth in the Rule, the District
3063emphasizes the impact of the proposed water use on the water resources of the
3077District. According to the District, this is the crux of the determination of
3090whether a proposed use is "reasonable-beneficial." Thus, Subsections (a), (b),
3100(c), and (d), of Rule 40E-2.301(1) require an applicant to provide reasonable
3112assurances that the proposed use will not cause movement of saline water, will
3125not adversely impact off-site land uses, will not cause adverse environmental
3136impact (such as wetland impacts) and will not cause pollution of the aquifer.
314931. The main issue in this case is Seacoast's contention that the District
3162has not required PGA to meet the criteria of Subsection (h) of the District's
3176Rule and the specific provisions of the Basis of Review. Subsection (h)
3188provides that an applicant must give reasonable assurances that the proposed
3201(h) makes use of a reclaimed water source
3209unless the applicant, in any geographic
3215location, demonstrates that its use is either
3222not economically, environmentally or techni-
3227cally feasible. . .
3232The District's Basis of Review (March 1994),
3239which is expressly incorporated in the District's
3248In those areas of the District which are designated
3257as critical water supply problem areas pursuant to
3265Chapter 40(E)-23, reclaimed water is required to
3272be used unless it is demonstrated by the applicant
3281that its use is either not environmentally,
3288economically or technically feasible.
329232. Seacoast claims that the District ignored the quoted provisions from
3303the District's Rule and its Basis of Review when it processed PGA's application
3316for renewal of its Permit without analyzing the applicant's determination not to
3328use reclaimed water.
333133. Seacoast also claims that the manner in which the District is
3343implementing its program contravenes a number of statutory provisions. The 1994
3354Florida Legislature passed legislation specifically encouraging the reuse of
3363reclaimed water. See, Chapter 94-243, Laws of Florida codified in part at
3375Section 373.250, Florida Statutes. Section 373.250(1), Florida Statutes,
3384The encouragement and promotion of water conserva-
3391tion and reuse of reclaimed water, as defined by
3400the Department, are state objectives and considered
3407to be in the public interest.
341334. The Statute directs each water management district to adopt rules to
3425implement this policy. As of the date of the hearing in this matter, no such
3440rules have been adopted by the District. It should be noted that Subsection 4
3454of Section 373.250 provides that "nothing in this Section shall impair a water
3467management district's authority to plan for and regulate consumptive uses of
3478water under this chapter."
348235. The 1994 Legislation also amended Section 403.064, Florida Statutes,
3492to specifically recognize that the encouragement and promotion of reuse of
3503reclaimed water was in the public interest. As amended, Section 403.064,
3514Florida Statutes, provides in pertinent part:
3520Reuse of Reclaimed Water.
3524(1) The encouragement and promotion of water
3531conservation, and reuse of reclaimed water, as
3538defined by the Department are state objectives. . .
3548* * *
3551(11) In issuing consumptive use permits, the
3558permitting agency shall take into consideration
3564the local reuse program.
356836. It is not clear at this point what changes, if any, the District will
3583implement to its permitting program as a result of the 1994 Legislation. The
3596District does not currently have any ruels implementing a reuse program.
360737. DEP has incorporated a policy to encourage reuse in its rules which
3620direct the water management districts to require "a reasonable amount of reuse
3632of reclaimed water from domestic waste water treatment facilities. . within
3645designated critical water supply problem areas unless such reuse is not
3656economically, environmentally or technically feasible." See, Rule 17-40.401(5),
3664Florida Administrative Code.
366738. Without question, the statutes and rules set forth above incorporate a
3679number of important and sometimes conflicting goals into the water permitting
3690process. These potentially conflicting goals necessarily require some difficult
3699policy choices. For the reasons set forth below, it is concluded that these
3712choices are not appropriately made in this Section 120.57 proceeding regrading
3723the renewal of PGA's permit.
372839. There is no dispute that the District has not independently evaluated
3740whether the use of reclaimed water by PGA is environmentally, economically or
3752technically feasible. In fact, the District has not even analyzed PGA's
3763feasibility determination. There is also no dispute that PGA's proposed
3773withdrawal is not projected to result in any harm to the resources of the
3787District. For this reason, the District will not second guess Seacoast's
3798decision not to utilize reclaimed water for irrigation.
380640. The District explains that its review of a permit application focuses
3818on the extent of harm expected from a proposed withdrawal. This approach by the
3832District has been followed since at least January 1, 1993. Thus, if a requested
3846withdrawal is projected to result in increased salt water intrusion, the
3857District will more closely scrutinize an applicant's consideration of
3866alternative sources available to alleviate the resource harm. If no capital one activate a credit card to the
3879resource is predicted, the District does not critically review an applicant's
3890decision not to use reclaimed water. The manner in which the District is
3903applying the criteria in its Rule is not clearly articulated in the Rule itself.
3917Indeed, it is difficult, if not impossible, to reconcile the District's
3928procedures with the literal language of the Rule and the 1994 legislation which
3941mandates that more emphasis be placed on reusing reclaimed water.
395141. Seacoast has not challenged the District's application of its Rule
3962under Section 120.535, Florida Statutes, nor has Seacoast sought a mandamus
3973action to compel the District to comply with its statutory obligations.
3984Instead, Seacoast has initiated this proceeding to challenge the issuance of a
3996permit by the District to a potential user of its reclaimed water. Essentially,
4009Seacoast is seeking to force the District to take a more critical view of the
4024applicant's determination not to utilize reclaimed water. This is not the
4035appropriate forum for Seacoast's attempt to significantly modify the District's
4045implementation of the regulatory scheme so that it complies with Seacoast's
4056interpretation of the statutory and Rule requirements.
406342. In order to have standing in a formal proceeding pursuant to Section
4076120.57(1), Florida Statutes, a petitioner must allege that its substantial
4086interests are being determined by the proposed agency action. The Petitioner
4097must show that the proposed agency action will result in an "injury in fact" of
4112sufficient immediacy that is within the "zone of interest" protected by the
412643. The "zone of interest" is defined by the particular statute
4137authorizing the challenged proposed agency action. See, Agrico Chemical Company
4147v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 1st DCA 1981).
4159The District contends that the "zone of interest" in a proceeding for a water
4173use permit pursuant to Part II of Chapter 373, Florida Statutes, is limited to
4187resource related issues involving conservation and protection of water
4196resources. This argument ignores Section seacoast utility authority, Florida Statutes, which
4205specifically encourages and promotes the reuse of reclaimed water.
421444. There can be no real dispute that at least part of Seacoast's
4227motivation in filing this action was to protect its economic interests. As
4239noted in City of Sunrise v. South Florida Water Management District, 615 So.2d
4252746, 747 (Fla. 4th DCA 1993), "competitive economic considerations do not fall
4264within the zone of protection that the District is authorized to consider."
4276Consequently, the economic interests of Seacoast in selling its reused water is
4288not a proper factor to be considered in the permitting process.
429945. Seacoast claims that it is not only seeking to protect its economic
4312interests, but that it is also seeking to further the environmental policies
4324established by the legislature and DEP. Specifically, Seacoast contends that it
4335is seeking to foster the legislative goal of encouraging the utilization of
4347reused water which is set forth in Section 373.250, Florida Statutes. According
4359to Seacoast, the specific statutory recognition of this goal distinquishes this
4370case from City of Sunrise, Supra.
437646. Even if it is assumed that Seacoast's interests in furthering the
4388utilization of reclaimed water is within the zone of interest protected by
4400Chapter 373, Seacoast's claim of injury is not sufficiently immediate to entitle
4412it to protection in this Section 120.57 proceeding. The possibility that PGA
4424could potentially purchase reclaimed water from Seacoast is pure speculation.
4434There are numerous reasons why such reuse may be economically, environmentally
4445or technically not feasible. Any injury to Seacoast will depend upon a number
4458of intervening factors. See, Boca Raton Mausoleum v. Department of Banking and
4470Finance, 511 So.2d 1060, 1063 (Fla. 1st DCA 1987). It is not the agency action
4485itself, i.e., the issuance of a renewal permit to PGA, which will cause the
4499injury. Village Park Mobile Home Association, Inc. v. Department of Business
4510Regulation, 506 So.2d 426 (Fla. 1st DCA 1987). In sum, the potential injury
4523claimed by Seacoast is too remote to be afforded protection within the context
4536of a proceeding regarding PGA's Permit. Seacoast can not show a substantial
4548injury of a sufficient immediacy in fact which is of a type or nature that the
4564proceeding is designed to protect against. See, Agrico Chemical Company v.
4575Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981), rev.
4587denied, 415 So.2d 1359 (1982); Town of Palm Beach v. Department of Natural
4600Resources, 577 So.2d 1383 (Fla. 4th DCA 1991).
4609Based upon the foregoing Findings of Fact and Conclusions of Law, it is
4622RECOMMENDED that the South Florida Water Management District enter a Final
4633Order dismissing the Petition filed by Seacoast challenging the renewal of
4644Permit Number 50-00617-W to PGA for golf course irrigation.
4653DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of
4668J. STEPHEN MENTON
4673Division of Administrative Hearings
4677The DeSoto Building
46801230 Apalachee Parkway
4683Tallahassee, Florida 32399-1550
4688Filed with the Clerk of the
4694Division of Administrative Hearings
4698this 6th day of February 1995.
47051/ As discussed in the Conclusions of Law below, Seacoast points to certain
4718provisions in Chapter 373, the State Water Policy and the District's rules to
4731support its claim that the regulatory structure requires it to develop the
4743capacity to make treated effluent available for reuse.
47512/ The utilization of reclaimed water can not be the sole means for disposing
4765of wastewater because customers will not utilize the reclaimed wastewater during
4776times of heavy rainfall. Accordingly, a back-up system of disposal, such as a
4789deep injection well, is necessary.
47943/ At the hearing, the parties stipulated that the Hearing Officer should take
4807Official Recognition of Chapter 17-40, Florida Administrative Code. Those rules
4817have subsequently been transferred to Chapter 62, Florida Administrative Code.
4827APPENDIX TO RECOMMENDED ORDER
4831All parties have submitted Proposed Recommended Orders. The following
4840constitutes my rulings on the proposed findings of fact submitted by the
4853Petitioner's proposed findings of fact
48581. Adopted in substance in Findings of Fact 1 and 3.
48692. Adopted in substance in Finding of Fact 8.
48783. Adopted in substance in Finding of Fact 6.
48874. Rejected as vague and overly broad.
48945. Subordinate to Finding of Fact 7.
49016. The first two sentences are adopted in substance in Finding
4912of Fact 5 and Endnote 1. The last sentence is addressed in
4924Finding of Fact 3 and in the Conclusions of Law.
49347. Rejected as vague and overly broad.
49418. Subordinate to Findings of Fact 16-20.
49489. Adopted in substance in Finding of Fact 18.
495710. Adopted in substance in Finding of Fact 15, and in the
4969Conclusions of Law.
497211. Adopted in substance in Finding of Fact 9.
498112. Addressed in the Preliminary Statement and in Finding of
499313. Adopted in substance in Findings of Fact 11 and 18.
500414. Adopted in substance in Finding of Fact 12.
501315. Addressed in Finding of Fact 13, and in the Conclusions of
502616. Rejected as constituting argument. This subject is
5034addressed in the Conclusions of Law.
5040Respondent, South Florida Water Management District's proposed findings of fact
50501. Adopted in substance in the Preliminary Statement and
5059Findings of Fact 9-11.
50632. Adopted in substance in Finding of Fact 1.
50723. Rejected as unnecessary and as a summary of testimony rather
5083than a finding of fact.
50884. seacoast utility authority Adopted seacoast utility authority substance in Finding of Fact 13.
50975. Adopted in substance in Findings of Fact 12, 14 and 15.
51096. Adopted in substance in Finding of Fact 13, and in the
5121Conclusions of Law.
51247. Rejected as unnecessary and as constituting argument rather
5133than a finding of fact.
51388. Adopted in substance in Findings of Fact 14 and 15.
51499. Adopted in substance in Findings of Fact 7 and 8.
516010. Addressed in Finding of Fact 5.
516711. Rejected as unnecessary and constituting argument rather
5175than a finding of fact.
518012. Rejected as unnecessary.
518413. Rejected as unnecessary.
518814. Addressed in the Conclusions of Law.
519515. Addressed in the Conclusions of Law.
520216. Addressed in the Conclusions of Law.
520917. Addressed in the Conclusions of Law.
521618. Addressed in the Conclusions of Law.
522319. Rejected as vague and ambiguous.
522920. Addressed in the Conclusions of Law.
523621. Adopted in substance in Finding of Fact 9.
524522. Subordinate to Findings of Fact 17-20.
525223. Subordinate to Findings of Fact 17-20, and addressed in the
5263Conclusions of Law.
526624. Adopted in substance in Findings of Fact 17-20.
527525. Rejected as unnecessary.
527926. Subordinate to Finding of Fact 17.
528627. Rejected as unnecessary.
529028. Addressed in the Conclusions of Law.
529729. Rejected as unnecessary.
530130. Adopted in substance in Findings of Fact seacoast utility authority. Adopted in substance in Findings of Fact 17-20.
531932. Rejected as unnecessary.
532333. Adopted in substance in Findings of Fact 14 and 15.
533434. Subordinate to Finding of Fact 19.
534135. Rejected as unnecessary and beyond the scope of this
535236. Rejected as unnecessary and beyond the scope of this
536337. Rejected as unnecessary and beyond the scope of this
537438. Rejected as unnecessary and beyond the scope of this
538539. Rejected as unnecessary and beyond the scope of this
539640. Adopted in substance in Finding of Fact 7.
5405Respondent, PGA National Golf Club and Sports Center, Ltd.'s proposed findings
54181. Adopted in substance in Finding of Fact 1.
54272. Adopted in substance in Finding of Fact 9.
54363. Adopted in substance in Finding of Fact 3.
54454. Addressed in the Preliminary Statement and in Finding of
54575. Adopted in substance in Finding of Fact 11.
54666. Adopted in substance in Finding of Fact 11.
54757. Adopted in substance in Findings of Fact 17, 18 and 19.
54878. Adopted in substance in Finding of Fact 19.
54969. Adopted in substance in Finding of Fact 14.
550510. Adopted in substance in Finding of Fact 9.
551411. Adopted in substance in Findings of Fact 1, 2 and 5.
552612. Adopted in substance in Finding of Fact 3.
553513. Rejected as unnecessary.
553914. Subordinate to Finding of Fact 6.
554615. Subordinate to Finding of Fact 13.
555316. Rejected as vague, ambiguous and unnecessary.
556017. Subordinate to Finding of Fact 7.
556718. Adopted in substance in Endnote 2.
557419. Adopted in substance in Finding of Fact 2.
558320. Adopted in pertinent part in Finding of Fact 7.
559321. Rejected as unnecessary and beyond the scope of this
560422. Rejected as unnecessary and beyond the scope of this
561523. Rejected as unnecessary.
561924. Adopted in substance in Findings of Fact 17-20.
562825. Subordinate to Findings of Fact 17-20.
563526. Rejected as unnecessary.
563927. Adopted in substance in Finding of Fact 17.
564828. Addressed in the Findings of Fact 17, 19 and 20, and in the
5662Conclusions of Law.
566529. Rejected as unnecessary and beyond the scope of this
567630. Rejected as chase total checking 200 offer and unnecessary.
568231. Adopted in substance in Findings of Fact 17-19.
569132. Subordinate to Finding of Fact 14.
569833. Subordinate to Finding of Fact 19.
570534. Rejected as unnecessary.
570935. Adopted in substance in Finding of Fact 16.
571836. Rejected as constituting argument.
5725Tilford C. Creel
5730South Florida Water Management District
5735Post Office Box 24680
5739West Palm Beach, Florida 33416
5744Nathan E. Nason, Esquire
5748Nason, Gildan, Yeager, Gerson
57561645 Palm Beach Lakes Boulevard
5761West Palm Beach, Florida 33401
5766Cecile I. Ross, Esquire
5770Office of the General Counsel
57753301 Gun Club Road
5779West Palm Beach, Florida 33416-4680
5784E. Lee Worsham, Esquire
5788Honigman, Miller, Schwartz and Cohn
5793222 Lakeview Avenue, Suite 800
5798West Palm Beach, Florida 33401
5803NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
5809All parties have the right to submit written exceptions to this Recommended
5821Order. All agencies allow each party at least 10 days in which to submit
5835written exceptions. Some agencies allow a larger period within which to submit
5847written exceptions. You should contact the agency that will issue the final
5859order in this case concerning agency rules on the deadline for filing exceptions
5872to this Recommended Order. Any exceptions to this Recommended Order should be
5884filed with the agency that will issue the final order in this case.
Seacoast Utility Authority
- General Info
- Seacoast Utility Authority is a regional water and wastewater utility that provides potable water service to more than 37,000 households and over 1,600 commercial establishments. It provides wastewater collection, treatment and disposal services to more than 34,000 residential dwellings and 1,300 businesses. The authority's service area, which covers over 65-square-miles, consists of unincorporated areas of Palm Beach County, and the incorporated areas of the City of Palm Beach Gardens, the Village of North Palm Beach, the Towns of Lake Park and Juno Beach, in northern Palm Beach County in Florida. Seacoast provides safe drinking water to family and business through more than 40 deep wells from which the water is transmitted to its two treatment plants. Its plants aerate, filter and disinfect water, and pump it through water distribution mains and service lines to homes and businesses.
- BBB Rating
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- Regular Hours
Mon seacoast utility authority Fri:
- Water Purification System Installation
- Payment method
- debit, amex, cash, discover, master card, visa
- Other Links
- Other Email
- Public Utility Consultants
- Other Information
Services: Water Purification System Installation
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Last Updated: 7th October, 2021