S" 'J 08-02-83
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT
CONSUMPTIVE USE PERMIT )
APPLICATIONS NO. 200003 )
SECTION 21 WELLFIELD AND )
NO. 20004 COSME-ODESSA ) ORDER NO.
WELLFIELD, FILED BY WCRWSA/ )
CITY OF ST. PETERSBURG; AND )
NO. 206676 NORTHWEST HILLS- )
BOROUGH REGIONAL WELLFIELD, )
FILED BY WCRWSA/HILLSBOROUGH )
ORDER GRANTING PETITIONS FOR
FORMAL PROCEEDINGS AND REFERRAL TO
DIVISION OF ADMINISTRATIVE HEARINGS
Continued Public Hearings before the Governing Board in
the above referenced proceedings were duly convened as scheduled
and noticed at 9:30 a.m. on August 3, 1983. These hearings were
commenced September 1, 1982, and have been continued from such
date. Parties to the proceedings are the West Coast Regional
Water Supply Authority, the City of St. Petersburg and Hillsborough
County, Applicants and Ben H. Hill, III, Intervenor, who was
granted full party status by Order No. 82-20 of this Board on
September 1, 1982.
At the outset the Board took up certain procedural matters
which had to be considered prior to hearing the Consumptive Use
Permit applications. As to each application, the applicant has
filed a Petition for Formal Proceedings and referral to the Divi-
sion of Administrative Hearings for the appointment of a Hearing
Officer to conduct the Formal Hearing on each pending CUP
application. In addition, a Motion to Consolidate the pending
applications for final hearing has been filed.
Upon consideration of such Petitions for Formal Proceed-
ings and such Motion for Consolidation, and all other procedural
matters still pending for determination by the Board, having
heard statements of General Counsel for the District regarding
the background and import of the matter of referral to the Divi-
sion of Administrative Hearings, and having heard argument of
counsel for the Applicants, the Board
FOUND AND DETERMINED as follows:
1. Each pending Petition for Formal Proceedings must be
granted or denied by the Board this date.
2. Formal proceedings are afforded to a Petitioner in all
proceedings in which the substantial interests of a party are
determined, and the proceeding involves a disputed issue of material
3. The Board understands that under a new law passed by
the 1983 legislature,when the Petitioner is an Applicant for a
Consumptive Use Permit, and the Petitioner requests that the
Petition be referred to the Division of Administrative Hearings
for appointment of a hearing officer to conduct the hearing, that
the Governing Board may no longer elect to conduct the hearing
itself but that it must refer the petition.
4. The Board further understands that in those proceed-
ings before a hearing officer the applicant shall bear the cost
of preserving all testimony and providing transcripts to the water
5. The Petitions in each pending proceeding related to
the above referenced Consumptive Use Permit Applications (herein-
after referred to as Section 21 Petition, CO Petition and NWH
Petition) contain allegations that the Petititioners have a sub-
stantial interest in the proceedings and that there are disputed
issues of material fact.
6. The allegations contained in paragraph 19 of the CO
Petition and in paragraph 20 of the Section 21 and NWH Petitions,
supported by previous allegations in paragraphs entitled back-
ground, appear sufficient to demonstrate that Petitioners have
substantial interests to be determined.
7. The Petitions allege that there are disputed issues
of material fact. The Petitioners allege that disputed issues of
material fact include each material matter which must be estab-
blished by an applicant for a Consumptive Use Permit as set forth
in Section 373.223, Florida Statutes, and in Section 40D-2.301,
Florida Administrative Code. Without consideration of any allega-
tions other than those contained in paragraphs 20 through 32 of
the CO Petition and paragraphs 21 through 33 of the Section 21 and
NWH Petitions, and reviewed in light of allegations in Intervenors
Petition respecting disputed issues of material fact, it prima facie
appears that there are disputed issues of material fact.
8. The allegations set forth in paragraphs 34, 35 and 36 of
the Section 21 Petition, in paragraphs 33, 34 and 35 of the CO
Petition and in paragraph 34 of the NWH Petition, are related to
matters previously determined by the Board; should not be subject
to redetermination except by this Board; and should be stricken
by the Hearing Officer as issues not subject to referral.
9. The allegations set forth in paragraphs 38 through 50
of the Section 21 Petition, paragraphs 37 through 49 of the CO
Petition, and paragraphs 37 through 50 of the NWH Petition, con-
tain statements of ultimate issues which must be established by
proof and therefore should not be taken as admitted by the District.
10. The Motion for Consolidation should be granted.
11) Tom F. Brown appeared before the Board and orally
requested leave to intervene as a party. He stated that he and
his wife own property adjacent to the Sheldon Road Wellfield which
is part of the NWH application and raised several matters to
show how his substantial interests will be affected by the proposed
permit. Mr. de la Parte stated that the applicants have no objection
to Mr. Brown being granted party status contingent upon his Petition
being reduced to writing and being subject to rebuttal at a subse-
12. All matters not addressed by the Board in its Order
No. 82-20, granting the Petition of Ben H. Hill, III to Intervene,
including standing of Saddleback Lake Association, Inc., to Inter-
vene and other matters addressed in that Petition, should be
referred to the Hearing Officer.
Wherefore, upon consideration, it is
13. That the Petitions for Formal Proceedings in each of
the pending Consumptive Use Permit proceedings is granted.
14. That as requried by Chapter 83-78, Laws of Florida,
the request of each Applicant for Consumptive Use Permit that
the matters be referred to the Division for the appointment of a
Hearing Officer to conduct hearings must be and is hereby granted.
15. That the Motion for Consolidation is granted.
16./ Tom F. Brown is allowed intervention, subject to
further demonstration of substantial interests before the Hearing
17. That the defense or plea of this Board set forth in
paragraph 8 above be considered preliminarily by the Hearing
Officer, and the Board would urge that those matters be stricken.
18. That all other outstanding procedural matters not
previously ruled upon by this Board are referred to the Hearing
19. That the Applicants be held to the burden of strict
proof in support of the CUP application, and that none of the
matters addressed in the District staffs' Draft Evidentiary Eval-
uation dated August 1982, or subsequent draft revisions thereto
be taken as proven.
DONE AND ORDERED the 3rd day of August, 1983, by the
Governing Board at Brooksville, Florida.
SOUTHWEST FLORIDA WATER MANAGEMENT
BRUCE A. SAMSON, CHAIRMAN
JAMES H. KIMBROUGH, SECRETARY
FILED WITH CLERK,
SWFWMD on General Counsel
AS CLERK, SWFWMD