Marion Co. v. Greene
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
JULY TERM 2008
MARION COUNTY,
Appellant,
v.
Case No. 5D07-1239
C. RAY GREENE, III AND
ANGUS S. HASTINGS, ET AL.,
Appellee.
________________________________/
Opinion filed August 1, 2008
Administrative Appeal from the St. Johns
River Management District.
Thomas L. Wright, County Attorney and
Thomas D. MacNamara, Ocala, for Appellant.
Wayne E. Flowers of Lewis Longman & Walker,
P.A., Jacksonville, for Appellees C. Ray
Greene, III and Angus S. Hastings.
Timothy A. Smith, Senior Assistant General
Counsel, Palatka, for Appellee, St. Johns River
Water Management District.
PALMER, C.J.,
Marion County appeals the final order entered by the St. John's River Water
Management District (District) adopting the order of the Administrative Law Judge (ALJ),
which recommended approval of the application filed by C. Ray Greene and Angus S.
Hastings (collectively Greene) for a consumptive use permit (CUP). Determining that
the ALJ committed no reversible error, we affirm.
Greene submitted a CUP application to the District, requesting authorization to
withdraw groundwater for bottling and distribution as drinking water through an existing
well. Marion County objected to the issuance of a permit, contending that the proposed
withdrawal and use were not in the public interest and were inconsistent with Marion
County’s interests, plans, and regulations. After recovering further submissions by all
parties, the District published a notice of its intent to approve Greene’s application.
Marion County responded by filing a petition for an administrative hearing.
The ALJ conducted a formal administrative hearing. Several expert witnesses
testified on behalf of Greene. In sum, Greene’s expert witnesses testified that the
proposed use did not violate any of the criteria set forth by applicable CUP statutes.
Marion County’s witnesses proffered testimony1 that the bottling of water on the subject
property required a special use permit (SUP) under the Marion County Land
Development Code and that no SUP had been issued to Greene. The ALJ rendered a
recommended order concluding that the District should approve Greene’s application.
The District approved the ALJ’s order, thereby adopting the ALJ’s findings of fact
and conclusions of law and rejecting all of the parties’ exceptions but one which was
added as an additional conclusion of law.2 This appeal timely followed.
1
The testimony was proffered because Greene previously filed a motion in limine,
which the ALJ granted. The motion argued that evidence concerning compliance with
Marion County’s comprehensive plan and zoning regulations was irrelevant to the
application for the CUP.
2
The additional conclusion of law clarified that only the first paragraph of Section
373.223(3) of the Florida Statutes applies to the application, since that paragraph
excepts the transport and use of water supplied exclusively for bottled water from the
remainder of the subsection.
2
The standard of review of a final agency order by a district court of appeal is
whether the agency’s interpretation of the law is clearly erroneous. Novick v. Dep’t. of
Health Bd. of Medicine , 816 2d 1237 (Fla. 5th DCA 2002).
Section 373.223(1) of the Florida Statutes sets forth the core criteria for issuance
of a CUP and specifies the statutory conditions as follows:
§373.223 Conditions for permit. —
(1)
To obtain a permit pursuant t the provisions of this
o
chapter, the applicant must establish that the proposed
use of water:
(a) Is a reasonable -beneficial use as defined in s.
373.019;
(b) Will not interfere with any presently existing legal
use of water; and
(c) Is consistent with the public interest.
§373.223(1), Fla. Stat. (2007). These three requirements are commonly referred to as
the “three-prong test.” See Southwest Fla. Water Mgmt. Dist. v. Charlotte County, 774
So. 2d 903 (Fla. 2d DCA 2001). The Legislature has granted the District the authority to
adopt rules to implement the provisions of law regarding permitting of consumptive uses
of water. See §§ 373.113, 373.171, Fla. Stat. (2007). As a result, the District has
adopted rules specifying conditions for issuance of a CUP. For example, Rule 40C2.301(2)&(3)&(4) of the Florida Administrative Code provides:
40C-2.301. Condition for Issuance of Permits.
***
(2) To obtain a consumptive use permit for a use which will
commence after the effective date of implementation, the
applicant must establish that the proposed use of water:
(a) Is a reasonable beneficial use; and
(b) Will not interfere with any presently existing legal
use of water; and
3
(c) Is consistent with the public interest.
(3) For purposes of subsection (2)(b) above, “presently
existing legal use of water” shall mean those legal uses
which exist at the time of receipt of the application for the
consumptive use permit.
(4) The following criteria must be met in order for a use to
be considered beneficial:
(a)
The use must be in such quantity as is necessary
for economic and efficient utilization.
(b)
The use must be for a purpose that is both
reasonable and consistent with the public interest.
***
(1) The consumptive use must not cause water
levels or flows to fall below the minimum limits
set forth in Chapter 40C-8, F.A.C.
Fla. Admin. Code Rules 40C-2.301(2)&(3)&(4). In addition, the District adopted by rule
the Applicant’s Handbook: Consumptive Uses of Water which provides further
explanation of the criteria found in Chapter 40C-2 as well as direction to applicants
regarding the type of information and data that must be submitted in order to obtain a
CUP.
Marion County asserts that the final order of the District is clearly erroneous
because the District improperly overlooked county public interests when considering the
public interest requirement for issuance of a CUP. We disagree.
Before issuance of a CUP, an applicant must show that the proposed use of
water is a reasonable beneficial use. Section 373.019(6), Florida Statutes (2007),
defines reasonable-beneficial as: “[t]he use of water in such quantity as is necessary for
economic and efficient utilization for a purpose and in a manner which is both
4
reasonable and consistent with the public interest.” Public interest is defined as being
“[t]hose rights and claims on behalf of people in general. In determining the public
interest in consumptive use permitting proceedings, the Board will consider whether an
existing or proposed use is beneficial or detrimental to the overall collective well-being
of the people or to the water resources in the area, the District and the State.” §9.3,
Applicant’s Handbook.
In the present case, Greene presented sufficient evidence indicating that there
was a need for the amount of water requested. Additionally, the evidence presented
was sufficient to demonstrate that the CUP was consistent with the public interest.
Next, Marion County claims that the use proposed by Greene requires issuance
of a SUP from Marion County and, because Greene did not show that a SUP had been
issued prior to issuance of the CUP, the District erred in issuing the CUP. We again
disagree.
Chapter 373 of the Florida Statutes grants the District exclusive authority to
approve CUP applications. Section 373.217(3) expressly states that when a county
ordinance is in conflict with the water management district’s exclusive authority, the
ordinance is deemed superseded for purposes of regulating the consumptive use of
water. Neither the statutes nor the rules regarding CUPs impose any requirements on
the District related to compliance with a local government’s comprehensive plan or land
development regulations. As such, the ALJ properly found:
The District does not consider whether local government
approvals have been obtained prior to issuance of a CUP for
purposes of determining whether the application is
consistent with the public interest. Neither does the District
5
consider impacts related to local roads from trucks
transporting the water or other impacts not related to water
resources. No such requirements are included in the
District’s adopted permitting criteria.
Marion County also argues that the District has a duty to manage the water
resources of the District to ensure their sustainable use, including future increases in
demand, and that the District violated that duty by granting Greene’s CUP because the
planning study document shows that groundwater withdrawals in the county will be
limited if all anticipated groundwater demands come to fruition within a 20-30 year time
period. We disagree.
The second prong of the three prong test requires the District to determine
whether a proposed use will interfere with any presently existing legal use of water
before issuing a CUP. Rule 40C-2.301(3), Florida Administrative Code, defines
presently existing legal use as “those legal uses which exist at the time of receipt of the
application for the consumptive use.” Thus, the District need only consider those uses
which are already permitted or are exempt from permitting at the time the application is
received. As such, in determining whether to grant Greene's CUP application, the
District was not required to consider future or potential uses.
Marion County also argues that the record evidence fails to demonstrate that
Greene’s proposed use of water was consistent with the public interest as required by
the third prong of the test. In examining whether an application is consistent with the
public interest, the District considers whether the use of water is efficient, whether there
is a need for the water requested, and whether the use is for a legitimate purpose. The
inquiry focuses on the impact of the use on water resources and existing legal users.
6
Our review of the evidence reveals that there were not any conditions that would require
the District to deny the permit application.
Marion County also contends that the District erred by failing to consider required
statutory considerations set forth in section 373.223(3) of the Florida Statute (2007).
However, the language of the statute expressly exempts bottled water from
consideration. Specifically, section 373.223(3) of the Florida Statutes (2007) states:
373.223 Conditions for a permit.—
***
(3) Except for the transport and use of water supplied by the
Central and Southern Florida Flood Control Project, and
anywhere in the state when the transport and use of water is
supplied exclusively for bottled water as defined in s.
500.03(1)(d), any water use permit applications pending as
of April 1, 1998, with the Northwest Florida Water
Management District and self-suppliers of water for which
the proposed water source and area of use or application
are located on contiguous private properties, when
evaluating whether a potential transport and use of ground
or surface water across county boundaries is consistent with
the public interest, pursuant to paragraph (1)(c), the
governing board or department shall consider:
§ 373.223(3), Fla. Stat. (2007). Thus, these factors need not have been considered
while evaluating the instant CUP application. Instead, section 373.233(2) of the Florida
Statutes applies. That section states:
373.223 Conditions for a permit.—
***
(2) The governing board or the department may authorize
the holder of a use permit to transport and use ground or
surface water beyond overlying land, across county
boundaries, or outside the watershed from which it is taken if
the governing board or department determines that such
transport and use is consistent with the public interest, and
no local government shall adopt or enforce any law,
ordinance, rule, regulation, or order to the contrary.
7
§373.233(2), Fla. Stat. (2007). The District fully evaluated whether the CUP was
consistent with the public interest a nd properly determined that it was consistent.
AFFIRMED.
MONACO, J., concurs specially with opinion.
LAWSON, J., dissents with opinion.
8
MONACO, J., concurring.
Case No. 5D07-1239
While I concur with the affirmation of the order of the St. John’s River Water
Management District which adopts the order of the Administrative Law Judge
recommending approval of the application of the appellees, I do so not because I think it
is a good idea to allow this consumptive use of fresh water resources, but because I
conclude that the legislation in place supports the position of the District. Judge Lawson
is correct in his dissent that the District’s approval appears to be shortsighted.
Nevertheless, the District has made a determination that the consumptive use permit is
consistent with the public interest, and that determination has the necessary record
support. I cannot agree to reverse, therefore, because to do so would require us to
rewrite the applicable statute.
LAWSON, J., dissenting.
Case No. 5D07-1239
I respectfully dissent. In my view, the District's interpretation and application of
section 373.223, Florida Statutes, is clearly erroneous. That statute requires a CUP
applicant to show that its permit is "consistent with the public interest." In this case, the
District has approved a permit that allows a private land -owner to tap into the Floridan
Aquifer, in Marion County, Florida, and withdraw almost 500,000 gallons of water per
day, for 20 years into the future, for bottling and shipping elsewhere, with no
consideration of how this use of an extraordinarily valuable and limited state resource
will impact the citizens of Marion County, 1 all of Florida,2 or our state's other natural
resources 3 in the future. According to the District's witnesses, the District considers it to
be "in the public interest" to permit withdrawal of water from the Floridan Aquifer into the
future, for bottling and shipping elsewhere, "as long as the water is available" today.
Consistent with this testimony, the District concludes in its final order that:
If a source of water is available for use [today], and a
beneficial use can be made of water from the source, and if
a proposed use of the source meets all of the District's
criteria for such use, the District has no basis on which to
deny that applicant's request for a permit to use water from
the source.
1
Marion County presented testimony that issuance of this 20-year permit will
"allow the removal of water from the ground water right up to the point where ground
water no longer is available to meet the future needs of Marion County" and its citizens.
2
The Floridan Aquifer underlies all of Florida, and is the principal source of water
supply in most of North and Central Florida.
3
Among those natural resources, for example, are the largest first-magnitude
artesian spring formations in the United States, Silver Springs (the headwater of the
Silver River), and the fourth-largest first-magnitude artesian spring formation in the
State, Rainbow Springs (the headwater of the Rainbow River).
To me, this interpretation of the statute makes no sense. When considering a permit
that will authorize water use long into the future, I believe that the District's public
interest determination must necessarily take into consideration the anticipated impact of
the water usage over the life of the permit. Therefore, I would reverse with directions
that the District determine whether the water use allowed by this permit in the future
(over the life of the permit) is consistent with the public interest.
2
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