Title: Pinellas County vs. SWFWMD and West Coast Regional Water Supply Authority vs. SWFWMD, Volume I
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Permanent Link: http://ufdc.ufl.edu/WL00001952/00001
 Material Information
Title: Pinellas County vs. SWFWMD and West Coast Regional Water Supply Authority vs. SWFWMD, Volume I
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Pinellas County vs. SWFWMD and West Coast Regional Water Supply Authority vs. SWFWMD, Volume I, January 21, 1980
General Note: Box 9, Folder 19 ( State of Florida Division of Administrative Hearings - 1980 ), Item 1
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00001952
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text



STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE


HEARINGS


)
PINELLAS COUNTY, a political )
subdivision of the State of Florida,

Petitioner,
)
VS.

SOUTHWEST FLORIDA WATER MANAGEMENT
DISTRICT, an administrative agency
of the State of Florida,

Respondent.


WEST COAST REGIONAL WATER SUPPLY
AUTHORITY, an interlocal governmental
agency,

Petitioner,

vs.

SOUTHWEST FLORIDA WATER MANAGEMENT
DISTRICT, an administrative agency
of the State of Florida,

Respondent.


CASE NO.
79-2325R











CASE NO.
79-2392R


REPORT OF PROCEEDINGS


VOLUME I


alffabagY & : nK nhay CERTIFIED MERIT REPORTERS
OFFICIAL COURT REPORTERS
203 PINELLAS COUNTY BUILDING
1I0 FIFTH STREET NORTH
ST. PETERSBURO. FLORIDA 33701
PHONE 821-3320


L


J [d j




1-A


INDEX TO PROCEEDINGS


Volume I


PAGE NO.


PRELIMINARY MATTERS...................................

OPENING STATEMENTS ....................................


17


PETITIONER'PINELLAS COUNTY'S CASE


Witnesses:


ARTHUR R. FINNEY....Examination (Hearing Officer)
Direct ................ ... ...
Examination...................
S... Examination...................
Direct (resumed) ...........
Examination.................
Direct (resumed).............

Volume II

PETITIONER PINELLAS COUNTY'S CASE (continued)


58
58
63
71
73
119
125


Witnesses (continued):,


ARTHUR FINNEY.......Direct (resumed).............
Examination. ..................
Cross (Mr. Blain)............
Cross (Mr. Figurski)........
Cross (Mr. Wendel)...........
Cross (Mr. Snow) .............
Redirect.......................

S. CURT KISER.......Examination (Hearing Officer)
Direct ........ ... ...........
Cross (Mr. Blain) ..........
Redirect .....................
Recross (Mr. Blain)..........
Further Redirect...........
Further Recross (Mr. Blain)..
Further Redirect............

PICKENS TALLEY.........Examination (Hearing Officer)
Direct ..................... ..
Cross (Mr. Blain) ...........
Redirect ....................
Recross (Mr. Blain) ..........


128
134
141
187
191
192
196

202
203
231
241
241
242
243
244

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251
252


Eanabag & jKanabagj OFFICIAL couRr REPORTERS
263 PINELLAS COUNTY BUILDING
ISO FIFTH STREET NORTH
ST. PrETERBURG. FLORIDA 33701




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Volume III

PETITIONER PINELLAS COUNTY'S CASE (continued)


PAGE NO.


Witnesses (continued):


TERRY KNEPPER.....


SANDY NETTLES.


..Examination (Hearing Officer)
Direct .......................
Cross (Mr. Blain)............
Cross (Mr. Figurski).........
Redirect ... ... ..... ...... ..
Recross (Mr. Blain)...........


......Examination (Hearing Officer)
Direct .......................
Examination (Mr. Blain)......
Direct (Resumed).............
Cross (Mr- Blain)............
Redirect.......9 ..............


Volume IV


OPENING STATEMENTS............... .......... .........


PETITIONER WEST COAST REGIONAL WATER SUPPLY


AUTHORITY'S CASE


Witnesses:


SANDY NETTLES.....


GENE HEATH.........


.Redirect (Mr. Allen) .........
Recross (Mr. Blain)...........

.Examination (Hearing Officer)
Direct (Mr. Apgar)...........
Direct (Mr. Allen)...........
Direct (Mr. Linn)............
Cross (Mr. Blain)............
Cross (Mrs. Haag) ............
Cross .(Mr. Figurski)........
Redirect (Mr. Apgar).........
Recross (Mr. Blain)...........
Further Redirect (Mr. Apgar).
Further Recross (Mr. Blain)..


CHARLES WILSON
PALMER, JR..........Examination (Hearing Officer)
Direct (Mr. Apgar)........ .
Cross (Mr. Blain)...........


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451

454
454
475
480
486
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518


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524


&anab aaa OFFICIAL COURT REPORTERS
263 PINELLAS COUNTY BUILDING
IS0 FIFTH STRICT NORTH
ST. PETrRassRG. FLORoID 33701


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306
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423


431







1 PAGE NO.
PETITIONER WEST COAST REGIONAL WATER SUPPLY
f 2. AUTHORITY'S CASE (continued)

3 Witnesses (continued):

4 DONALD FEASTER......Examination (Hearing Officer) 539
Examination (Mr. Apgar)...... 539
5 Examination (Mr. Allen)..... .547
Examination (Mr. Blain)...... 551
6 Examination (Mrs. Haag)...... 552
Further Examiantion (Mr.
Apgar) ..................... 553
Further Examination (Mr.
8 Allen) ..................... 554
Further Examination (Mr.
9 Blain) ..................... 556

10
10 BARBARA VERGARA.....Examination (Hearing Officer) 558
Examination (Mr. Apgar)...... 559
Examination (Mr. Allen)...... 566

12
INTERVENOR CITY OF ST. PETERSBURG'S CASE

13
Witnesses:

14 EDWARD T. KNUDSEN,

15 JR................Examination (Hearing Officer) 569
Direct................ ....... 569
6 Cross (Mr. Blain) .......... 574
16
Redirect..................... 578
17
Volume V
18
INTERVENORS' MOTION TO DISMISS PETITIONS.............. 581
19
RESPONDENT'S MOTION TO DISMISS PETITIONS............. 592
20
RESPONDENT'S CASE
21
Witnesses:
22
JAMES A. MANN.......Examination (Hearing Officer) 601
23 Direct.......... ... ........ 601
Examination (Mr. Allen)...... 603
24 Direct (Resumed)............. 607
Cross (Mr. Apgar)............ 629
25 Cross (Mr. Allen)............ 657
Cross (Mr. Linn)............. 664


anahag & Eanabag OFFICIAL COURT REPORTERS
263 PINELLAS COUNTY BUILDING
150 FrFTH STREET NORTH
ST. PETERSBURG. FLORIDA 33701
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PAGE NO.


RESPONDENT'S CASE (continued)

Witnesses (continued):

JAMES A. MANN
(continued) ........Redirect....
Examination
Recross (Mr.
Recross (Mr.


(Mr. Figurski)...
Apgar) ....0.....
Linn) ...........


Volume VI


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23

24

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Witnesses:


SANDY NETTLES .......Direct. ....................
Cross (Mr. Blain)............

PETITIONER PINELLAS COUNTY'S MOTION TO DISMISS
INTERVENORS.........................................

PETITIONER PINELLAS COUNTY'S MOTION TO STRIKE
QUESTIONS, ANSWERS AND INTERROGATORIES OF
INTERVENORS...... ..... ................... ............


aab & lataOba OFFICIAL COURT REPORTERS
263 PINELLAS COUNTY BUILoING
I50 FIFTH STRICT NORTH
ST. PETERSBURG. FLORIDA 33701


665
667
668
672


S


DONALD FEASTER...... Direct..... ...............
Cross (Mr. Allen) ............
Cross (Mr. Apgar)............
.Redirect......................
Examination.,(Mr. Linn).......

JAY AHERN............Examination (Hearing Officer)
Direct.......................
Cross (Mr. Allen)............
Cross (Mr. Apgar)............

PETITIONER PINELLAS COUNTY'S REBUTTAL


676
710
722
731
734

737
737
755
757


772
776


791



793




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1-k


-INDEX TO EXHIBITS


&- 2
23

3

4

5

S6

7

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12

13

1,4

15

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^ t 25


#1

#2
03
*;

#:

#t


PAGE MARKED FOR PAGE RECEIVED
IDENTIFICATION IN EVIDENCE

S78 128

82 83

3 89 89

4 97 102


EXHIBIT NUMBER

PETITIONER PINELLAS COUNTY

PETITIONER PINELLAS COUNTY

PETITIONER PINELLAS COUNTY

PETITIONER PINELLAS COUNTY

PETITIONER PINELLAS COUNTY

PETITIONER PINELLAS COUNTY

PETITIONER PINELLAS COUNTY

CITY OF ST. PETERSBURG

RESPONDENT

RESPONDENT ,

RESPONDENT

RESPONDENT

RESPONDENT

RESPONDENT

RESPONDENT

RESPONDENT

RESPONDENT

RESPONDENT

PETITIONER PINELLAS COUNTY


103

114

- 202
*.*


#5

#6

#7

#1

A

B

C

D

E

F

G

H

I

J

#8


&abag taba OFFICIAL CO. C REPORTERS
243 PINELLAS COUNTY BUILDING
150 FIFTH STRErE NORTH
ST, PETERSBURG. FLORIDA 33701


240

572

618

680

683

684

708

709

731

746

750

755

769




S I, i kJFJ1b l.


.1 PROCEEDINGS: Final Hearing.

2 BEFORE: Honorable Diane Tremor,
Hearing Officer.
3
DATE: January 21, 1980.
4
PLACE: Chamber of Commerce,
5 801 Kennedy Boulevard,
Tampa, Florida.
6
REPORTED BY: Donald Kanabay,
7 Registered Professional Reporter.

8 APPEARANCES: MR. JOHN T. ALLEN, JR.,
4508 Central Avenue,
9 St. Petersburg, Florida 33711,
Attorney for Pinellas County.
10
MR. EDWARD P. de la PARTE, JR.,
11 and MR. KENNETH E. APGAR,
403 North Morgan Street,
12 Tampa, Florida 33602,
Attorneys for West Coast Regional
13 Water Supply Authority.

14 MR. L. M. BLAIN and
MR. THOMAS E. CONE, JR.,
15 Post Office Box 399,
Tampa, Florida 33602,
16 Attorneys for Southwest Florida
Water Management District.
17
MR. GERALD A. FIGURSKI,
18 4025 Moon Lake Road,
New Port Richey, Florida,
19 Attorney for Pasco County.

20 MR. CARL LINN,
City Hall,
21 St. Petersburg, Florida,
Attorney for City of St. Petersburg
22
MR. JOHN F. WENDEL,
23 6155 South Florida Avenue,
Post Office Box 5378,
24 Lakeland, Florida 33803,
Attorney for Citrus County.
S25


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263 PINcLLAS COUNTY BUILOto
ISO FIFTH STREET NORTH
ST. PETERnsBUR. FLORIoA 33701




,A l d, t,.ili l.


1 APPEARANCES (continued):

5 2 MR. ROBERT BRUCE SNOW,
112 North Orange Avenue,
3 PPost Office Box 2060,
Brooksville, Florida 33512,
4 Attorney for Hernando County.

5 MRS. JEANNETTE M. HAAG,
706 South Highway 41,
6 Inverness, Florida 32650,
Attorney for Withlacoochee
7 Regional Water Supply Authority.

8 MR. STEPHEN RYDER,
Attorney for Withlacoochee
9 Regional Planning Council.

10 MR. RANDALL THORNTON,
Attorney for Sumpter County, et al
11

12

13 THE HEARING OFFICER: All right, are the parties

S14 ready to proceed here?

15 MR. ALLEN: The Petitioner is, Madam Hearing

16 Officer.

17 MR. APGAR: West Coast Regional Authority Water

18 Supply Authority is ready.

19 MR. BLAIN: We're ready.

20 THE HEARING OFFICER: I'd like to make just a

21 few preliminary statements for the record, and then

22 I'll ask you all to make your appearances.

23 This hearing will now be in order. Pursuant

24 to notice, we're in the Briefing Center of the Greater

25 Tampa Chamber of Commerce, Tampa, Florida, on January


Caabagma Ctanab OFFICIAL COURT REPORTERS
263 PINELLAS COUNTY BUILDING
0SO FIFTH STRET NORTH
T. PTrrgRSURG. FLORIDA 33701
_________________ ~ ~~~~~~~~~~ ~ -___________________________________




1 1 I I -l 1 1 L.
4

1 21, 1980, at 9:30 A.M., for final hearing in the

( 2 cases of Pinellas County versus Southwest Florida

3 Water Management District, and West Coast Regional

4 Water Supply Authority versus Southwest Florida Water

5 Management District, with the various intervenors.

6 My name is Diane Tremor, and I have been

7 assigned as the Hearing Officer in this case. The

8 Division of Administrative Hearing case numbers are

9 79-2325R for Pinellas County, and 79-2393R for West

10 Coast Regional Water Supply Autlority, These cases

11 concern the issue of whether Respondent's Rule 16J-2.11

12 (3), Florida Administrative Code, constitutes an

13 invalid exercise of delegated Legislative authority.

S14 As to the procedural rules of this hearing,

15 we'll be governed by the model rules of procedure,

16 Chapter 28-5 of the Florida Administrative Code, and

17 Chapter 120 of the Florida Statutes.

18 The Petitioners will have the burden of

19 going forward with their evidence and witnesses, and

20 the Respondent and the Intervenors will have the

21 opportunity to Cross-examine those witnesses. The

22 Petitioner may Cross-examine witnesses presented by

23 the Respondent and Intervenors, and present rebuttal,

24 oral and documentary evidence. Each party will have

S25 the opportunity to make a brief opening and closing


Kanatbag & KEanabag ofrcIAL COUNT REPORTERS
263 PIN LLAS COUNTY BUILDING
IS0 FiFTH STREET NORTH
ST. P TERsBURG. FLORIDA 33701







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statement, if they so desire.

During the hearing, we will not be bound

by strict and technical rules relating to evidence

and witnesses. While irrelevant, immaterial or unduly

repetitious evidence will be excluded, all other

relevant evidence, including hearsay which has

substantial probative effect will be admitted if it

is the type of evidence commonly relied upon by

reasonable, prudent persons in the conduct of their

affairs, whether or not such-evidence would be

admissible in the courts of Florida.

Hearsay evidence may be used to supplement

or explain other evidence, but it will not be sufficient

in itself to support a finding unless it would be

admissible over objection in civil actions.

At the conclusion of this hearing, it will

be my responsibility to prepare a final order setting

forth findings of fact, conclusions of law, and a

ruling as to the validity of the challenge rule. Each

party will have the opportunity, if they so desire, to

submit to me proposed findings of fact and proposed

conclusions of law.

At this time, would the attorneys please

identify themselves for the record, starting with the

Petitioners.


abag & anaag IAL COURT REPORTS
263 PINELLAS COUNTY BUILDING
150 FIFTH STREET NORtT
ST. PCETRSSURO. FLORIDA 33701


ti




I J 1 I ,, b 1, L,



1 MR. ALLEN: Yes, I'm John Allen. I represent

2 Pinellas County.

3 MR. APGAR: My name is Kenneth Apgar,. I

4 represent West Coast Regional Water Supply Authority.

5 MR. BLAIN: I am L. M. Blain, representing

6 Southwest Florida Water Management District. I also

7 have with me Mr. Thomas Cone, who is co-counsel.

8 MR. WENDEL: I am John Wendel, County Attorney,

9 Citrus County, and I represent the Intervenor Citrus

10 County.

11 MRS. HAAG: Jeannette Haag. I represent the

12 Withlacoochee Regional Water Supply Authority, who is

13 also an Intervenor.

14 MR. FIGURSKI: Gerald Figurski, representing

15 Pasco County.

16 MR. SNOW: Bruce Snow, Attorney for Hernando

17 County, Intervenor in this cause.

18 MR. RYDER: Steve Ryder, representing the

19 Intervenor Withlacoochee Regional Planning Council.

20 MR. LINN: Carl Linn, City Attorney, City of St.

21 Petersburg, representing the City as, I believe, an

22 Intervenor.

3 Has there been a ruling on our status?

24 THE HEARING OFFICER: I have ruled on that, yes,

S25 sir. You may not have gotten your copy yet.


IEanIhIE .& IE8flaJag OnIcAL couRT REPORTERS
263 PINELLAS COUNTY BUILDING
150 FIFTH STREET NORTH
ST. PaTEruBUoR. FLORIDA 33701




'! *. 7 7



1 MR. LINN: All right.

2 THE HEARING OFFICER: Is Mr. Thornton present,

3 representing Sumter County and Sumter County

4 Recreation and Water Conservation and Control

5 Authority?

6 MI. WENDEL: Mr. Thornton is not here.

7 THE HEARING OFFICER: Not here. Those two

8 entities have filed a motion to intervene, which also

9 has been granted.

10 For those of you who have not gotten a copy

11 yet, I entered an order on January 17, 1980, granting

12 the motions of Citrus County, Sumter County Recreationa

13 Water Conservation and Control Authority, Sumter

14 County, and the City of St. Petersburg to intervene,

15 and denying the petition of Citrus County in support

16 of the validity of an existing rule.

17 Also, on the same date, I entered an order

18 quashing the subpoena directed to Representative

19 S. Curt Kiser, on my own motion, such subpoena being

20 prohibited by Florida Statute Section 120.58() (b). I

21 believe those are the last two orders I entered, which

22 you all may not have gotten a copy of as of this date.

23
I do have the motion to intervene of

Withlacoochee Regional Planning Council, which I have

25 not entered a written order on. I don't believe I have


CEanahag d& KEawtabag OFFmIAL COURT REPORTERS
263 PINELLAS CouNTY BUlLOIG
180 FIFTH STREET NORTH
ST. PETERSBURG. FLORIDA 33701







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anabqag O& anabagAL COURT REPRnS
2 3 PINELLAS COUNTY BUILDING
10O IFTH STREET NORTH
ST. PeCTRSaURO. FLORIDA 33701


received an objection to that motion.

MR. ALLEN: No, ma'am. It would probably be

the same as we filed as to all of the others.

THE HEARING OFFICER: It would be the same?

MR. ALLEN: Yes, ma'am.

MR. APGAR: On behalf of West Coast, the

objection would be the same.

THE HEARING OFFICER: I will grant the motion to

intervene of Withlacoochee Regional Planning Council,

and deny the petition of.the Iitervenor to support

? the validity of an existing rule.

All right, at this time, are there any

preliminary matters or motions?

MR. BLAIN: Following my score card, I didn't

hear what action you took on the City of St.

Petersburg's petition opposing the rule. If it is not

to be denied, then it would be appropriate that that

petition be consolidated with this case, as was the

West Coast Regional Water Supply.

THE HEARING OFFICER: The only thing I have

from the City of St. Petersburg is a motion to

intervene, which I have granted. I don't have a

separate petition.

MR. LINN: That's the only pleading I filed so

far.


I -


.(k U. l.iiL -..nilllllMH




109


1 I then gave the name of the particular well field,

2' and the permitted CUP on the average million gallons per

3 day.

4 I then gave, listed the acres that are owned or

5 controlled presently in these particular well fields, and

6 then made a calculation of the requirements that would be

7 required in a well field if this 365,000 gallons per acre

8 per year was applicable to these particular well fields.

9 Then I showed a surplus or a deficit in the acres

10 that would be required if this 365,000 gallons per year per

11 acre was in there.

12 I then used, to the best of my ability, some

13 estimate of what real estate was selling in the area, based

14 on what I could determine, and came up to show that if we

15 were -- if it was required to purchase land to meet the

16 requirements, if this was a requirement, that that would

17 be an expenditure of $362,992,750.

18 And this was prepared as an example to show what

19 would happen if the 365,000 gallons per acre per year was

20 applicable.

21 Q And that would be just to get or keep the water

22 supply that we have now?

2 A Right.

24 MR. BLAIN: We would again renew our objection.

25 Mr. Finney now has apparently been qualified as an


aI mlbamg & LIanaak OIci AL COURT RcpORs
218 PINILLAS COUNT aUILOINO
180 FirmT STarrI NOWnT
ST. PTrrr SBUnR. FLORIDA 33701




10

1 legislative delegation. This was ruled on previously,

2 and Chapter 120.56 was subsequently amended.

3 THE HEARING OFFICER: Are you speaking to a

4 particular paragraph of the Petition of Pinellas

5 County?

6 MR. BLAIN: Yes, it's in paragraph 5, I believe,

the second portion. It asks alternative disposition,

8 because Rule 16J-2.1(3) is invalid because it is an


invalid exercise of delegative legislative authority,

10 or because it is an exercise of invalidly delegated
11
1 legislative authority, and the phrase "or because it

12
12 is an exercise of invalidly delegated legislative

authority" is no longer authorized by statute as it

14 was previously.

15
15 THE HEARING OFFICER: Well, I would agree with

16
you, Mr. Blain, that the Hearing Officer cannot rule
17
on the constitutionality of an'existing rule. So to
18
that extent --
19 MR. ALLEN: I don't think that we intended that

that --

21 THE HEARING OFFICER: I didn't read it that way.

MR. ALLEN: I did not, either.

23
THE HEARING OFFICER: But to the extent that that
24
is your objection, I agree with you.

25 MR. ALLEN: So I guess if we had asked for it,


anahag 2aOFnabag FmAL COURT REPOTs
263 PINELLAS COUNTY BUILDING
50 FIFTH STRIgT NORTH
ST. PErrTRsauR. FLORIDA 33701
nrnar,r. __ ..... I ,. .- -. ~ .. .. -- .. ... ......". .- ... .` .. ......... ^. ... .. . .~ .-- '.. -- .....-~--..'~ ~ .. .~ ....







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then he's right, but I had not intended that.

THE HEARING OFFICER: And I agree with you that

that language has been stricken from the Statute.

MR. BLAIN: Does that mean that you are ruling

that you are striking that phrase from the Petition?

THE HEARING OFFICER: To the extent that -- yes,

sir, that that language is no longer a basis for rule

challenge under Section 120.56.

MR. BLAIN: The second concern that we have is

that, of course, it may be more appropriate that we

address this in an opening statement -- that is, that

the challenge of 16J-2.11(3), that (3) standing alone

is not a rule, but merely a portion of Rule 16J-2.11,

and that it should be considered as an attack on a

portion of one of the rules, rather than as an attack

on the rule itself.

MR. ALLEN: In reply to that, I disagree. Rule

16J-2.11(3) squarely provides that a consumptive use

permit will be denied solely on the basis of failure

to comply with the water crop, and even though it may

be physically written by the District as a part of a

rule, it, standing alone, is a rule in our judgment,

and is subject to attack on its own.

THE HEARING OFFICER: Well, it is within my

authority to declare a portion of a rule invalid.


ttnalag j t8tanaagbj OFCICAL. COURT REPORTERS
263 PIcNLLAS COUNTY BUILDING
150 FIFTH STREET NORTH
ST. PETERSBURG. FLORIDA 33701







1 MR. BLAIN: We're not questioning.that.

2 THE HEARING OFFICER: As well as the total rule.

3 I believe you are just challenging that portion of the

4 rule.

5 MR. ALLEN: Yes, ma'am.

6 THE HEARING OFFICER: Subparagraph (3).

7 MR. ALLEN: Yes, ma'am.

B THE HEARING OFFICER: All right. I don't quite

9 understand your concern, then.

10 MR. BLAIN: Well, all of the discussion and all

11 of the petition is identifying 16J-2.11(3), not as a

12 portion of a rule, but as a rule in and of itself.

13 It's not a rule that stands alone in and of itself,

14 but it is one portion of a larger rule that provides

15 certain portions.

16 We're not suggesting that it is not within

17 the prerogative of the Hearing Officer to declare a

18 portion of a rule invalid. We are suggesting that it

19 would be improper to consider only that narrow portion

20 of that rule as a rule itself, to the extent of

21 excluding any consideration of the remainder of the

22 rule, insofar as it relates to the validity of that

23 portion of the rule.

24 THE HEARING OFFICER: Certainly, if it's relevant

q 25 to consider other portions of the rule in order to make


t~t J A B OFFICIAL COURT REPORTERS
263 PINELLAS COUNTY BUILDING
150 FIFTH STREET NORTH
ST. PETERSeURG. FLORIDA 33701


III I I .





13


1 that portion make sense, I would have to consider the

2 rest of the rule.

3 Any further preliminary matters?

4 MR. BLAIN: Could we ask what kind of schedule

5 the Hearing Officer would like to follow?

6 THE HEARING OFFICER: I have reserved three days

7 for this hearing, even though the notice of hearing

8 only states two, and I believe all the parties agreed

9 that it would be a three-day hearing. I don't have

10 more than three days.

11 MR. BLAIN: What about the length of day?

12 THE HEARING OFFICER: I am happy to follow

13 whatever schedule it takes to get the hearing

-L 14 completed during this three-day period. If we need

15 to go into the evening hours, and everybody's

16 agreeable, I am agreeable. Do you all feel that

17 there will be any problem in completing the hearing

18 in three days?

19 MR. ALLEN: I don't, but of course I have no way

20 of knowing what evidence or anything that any of the

21 Intervenors would be putting in, and not even, for

22 instance, Mr. Blain. But Mr. Apgar and I have been

23 talking about it, and we thought that there's even

24 a possibility of doing it in two days, depending upon

0 25 the witnesses.


OFg ICIAL COURT REPORTERS
263 PINELLAS COUNTY BUILDING
50 FIFH STREET NORTH
ST. PETERsBURG. FLORIDA 33701


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7ft ESj NG OFFTCER: Welt, if you dim't feel

z vliet 1 be a etli e ire em, willing t follow

i stormal wbofilay.

Si. sAIN: Te*'s -so, inmby ball payers in trs

ipaae we really do 'it iuobw.

TME HEARING OFFiCeR: -Right.

IlM. -ALLEN: Pos-sibly if there is going to be

1iaiy lengthy testimony f i the Intervenors, they

idghit "indicate that at this point, to we insight be

*bi-e to get a handle on it.

TSE hEARING OFFICER: Would the ITtervenors care

^o Ebmment on their witnesses?

-MR. iGUTRSKI: The only witness we would consider

lld'ing for Pasco county is Mr. D"yn~slager, tiitites

iWknager in Pasco County.

THE IEARING OFFICER: Do the other Tntervenors

.ntici-pate calling their own witnesses?

1iR-. WENDEL: At this point, Citrus County

contemplates calling no witnesses, but we certainly

reserve the right to call someone.

TiE HEARING OFFICER: Certainly. I will not

hold you to it.

M.. SNOW: We would adopt the same rationale as

Citrus County has, as far as our participation is

concerned.


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THE HEARING OFFICER: Mrs. Haag?

MRS. HAAG: Likewise, we're going to wait and

see.

THE HEARING OFFICER: Mr. Linn?

MR. LINN: St. Petersburg would have about

fifteen, twenty minutes of testimony.

THE HEARING OFFICER: Mr. Ryder?

MR. RYDER: Withlacoochee Regional Planning

Council would adopt the same policy as the others.

THE HEARING OFFICER: We'll plan on finishing

up, then, I suppose, around five today, unless we

are in the middle of a witness, and we'll take a

break for lunch between twelve and one.

MR. BLAIN: We'have one difficulty. One of the

witnesses that we propose to use, probably tomorrow,

who is also under subpoena by Pinellas County, has a

speaking engagement at noon. I mentioned this to

Pinellas County, and we would anticipate that we

could work around that, taking something out of order

if need be. But Mr. Feaster does have a commitment.

THE HEARING OFFICER: I have no problem with

taking the witness out of order.

MR. ALLEN: I don't, either, and I indicated that

to Mr. Blain.

THE HEARING OFFICER: All right.


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Mr. Allen, do you care to make an opening

statement at this time?

MR. ALLEN: Yes, ma'am.

MR. WENDEL: If the Hearing Officer please, Mr.

Thornton is now present.

THE HEARING OFFICER: Mr. Thornton?

MR. THORNTON: Yes.

THE HEARING OFFICER: Would you like to make your

appearance for the record?

MR. THORNTON: Sorry I'm late. My name is

Randall Thornton, and I am appearing for Sumter

County and Sumter County Recreational Authority.

THE HEARING OFFICER: Thank you.

MR. APGAR: Madam Hearing Officer, before we

begin, Pinellas County and I, of course, have

discussed the order of presentation of evidence, and

what I propose as a logical manner of doing that is

to have Pinellas County introduce their case. The

West Coast Regional Water Supply Authority is a

Co-petitioner, and as I understand it is entitled to

present a separate case, and will do so at the

conclusion of Pinellas County's petition.

I assume, then, that St. Petersburg will

follow, and that there will be some order then among

the Intervenors and Southwest Florida Water Management


aabag & anaag OFFICIAL COURT REPORTERS
263 PINELLAS COUNTY BUILDING
IS0 FIFTH STREET NORTH
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District as to how they're going to proceed.

For the purpose of simplicity in these

proceedings, West Coast will adopt any objections made

by Pinellas County, unless West Coast expressly

states otherwise, to any evidentiary matters which

come up in this hearing. Also, West Coast would

reserve the right to make additional comments upon

any objection if it is necessary to do so.

THE HEARING OFFICER: Okay. Thank you.

MR. BLAIN: These seats are difficult. What is

your feeling as far as rising and --

THE HEARING OFFICER: I am perfectly content for

all of you to remain seated and be comfortable. This

room is warm. If you would be more comfortable taking

your jackets off, that's fine. You may remain seated

if you desire to do so.

MR. BLAIN: Thank you.

THE HEARING OFFICER: Feel free to stand up if

you can't think sitting down.

You may proceed with your opening statement.

MR. ALLEN: Thank you, ma'am.

Madam Hearing Officer, I don't know how

brief this will be. We will try to keep it to a

minimum. But I believed in preparing for this aspect

of the hearing that since I was first, I might set the


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framework of our contentions, so that you would

understand how the mixture of law and evidence will

be applied by Pinellas County in attempting to carry

its burden to show that this Rule has been enacted

without legislative authority.

To begin with, I think we need to examine

the Rule itself, and note one particular aspect of

the Rule, and that is its mandatory provisions, by

indicating that an issuance of a permit will be denied

if an amount of water is requested which is in excess

of what is called the water crop.

The.Hearing Officer will hear a number of

witnesses in this case, which will indicate to you

exactly, hydrologically, what the water crop is, or

what they view it to be, and this testimony, of course,

is going to be informative.

It will also give the Hearing Officer the

background to look into this particular Rule, to see

its actual practical effect, because it is important to

understand the practical hydrological effect of what

they're really saying here in the Rule.

And then, equipped with that information,

look into the statutes to see if the Florida Legislature

intended to grant to the Water Management District

the authority to deny a permit on the basis that someone


Katabag & Llatabag OFFICIAL COURT REPORTERS
263 PINELLAS COUNTY BUILDING
1SO FIFTH STREET NORTH
ST. PETERSBURG. FLORIDA 33701





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I does not own a sufficient quantity of land to meet

2 the water crop.

3 Second of all, the Hearing Officer will note

4 that the Rule actually ties water withdrawal to the

5 amount of land owned, leased or otherwise controlled.

6 This is the genesis of the Rule, the very foundation,

7 the crux, the essence of the Rule itself. You must own

8 a certain specific quantity of land in order to have the

9 ability to take one thousand gallons of water out,

10 according to your permit.

11 I think the testimony will be offered as to

12 what the basic procedures are of the Water Management

13 District in applying for a consumptive use permit,

14 and what actually are.-the yardsticks which are

15 utilized in arriving at the water crop, and the actual

16 hydrological. foundation connected with it.

17 The Hearing Officer will also note the same

18 as Mr. Blain was mentioning,. that there is a provision

19 which speaks to the water crop which is not in essence

20 something that we complained about, but Rule 16J-2.11(5)

21 provides that the Board may grant an exception to this

22 particular section of the act or section of the Rule,

23 and of course that leads to all kinds of inquiries.

24 One of the cases has indicated that how the

25 District has treated the Rule is something to be


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263 PINELLAS COUNTY BUILDING
150 FIFTH STREET NORTH
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1 considered, but not necessarily binding, obviously,

2 on the Hearing Officer. I think that we will produce

3 evidence that realistically, up to this time, the

4 Water Management District has not rejected anyone

5 solely on the basis of the water crop.

6 However, as the Hearing Officer can plainly

7 see by the very essence of the Rule, the power is

8 really what we're here about, the power to deny. Our

9 standing arose in these proceedings initially because

10 we have some property known as the Cross Bar Ranch in

11 Pasco County.

12 We already have a consumptive use permit on

13 that piece of property which permits the West Coast

14 Regional Water Supply Authority, which is our

15 Co-petitioner, to withdraw fifteen million gallons of

16 water average per day, with a twenty peak. So you

17 will hear, for instance, a lot of the witnesses, they

18 get into this slang of hydrology, and they'll say,

19 "Well, you have a 15/20 permit, or a 10/15 permit."

20 Well, the first figure is the average amount,

21 and the other figure is the maximum amount per day that

22 you can withdraw from that particular well field that

23 the Water Management District has permitted under the

24 permit.

2 25 At the present time, because of substantial


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1SO FIFTH STREET NORTH
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1 and far-reaching water needs, which we have known about

2 for a considerable length of time in Pinellas County,

3 there is a need to increase the withdrawal from the

4 Cross Bar Ranch, and there is pending before the Water

5 Management District a request by Pinellas County and

6 the West Coast Regional Water Supply Authority for a

7 30/45 permit, or thirty million gallons a day average,

8 forty-five peak.

9 The thing that really spurred this particular

10 proceeding was that Pasco County intervened in those

11 proceedings, and one of the positions taken by it is

12 that standing alone our application far exceeds the

13 water crop, and they are requesting the Water Management

S14 District to deny our permit solely on the basis of this

15 Rule, as one of their objections.

16 The Hearing Officer can certainly note,

17 based upon legal precedent and procedures, that if

18 the Rule is viable, even if the Water Management

19 District should grant an exception to Pinellas County

20 under the other Rule, 16J-2.11(5), that Pasco County

21 would still have an appeal to the District Court or

22 the Governor and the Cabinet in order to contend that

23 this Rule must be strictly complied with, as it is

24 written; and so Pinellas County, therefore, is placed

25 in substantial jeopardy in regard to this particular


iCatabag & Sattahlag OFFICIAL COURT REPORTERS
263 PINELLAS COUNTY BUILDING
O50 FIFTH STREET NORTH
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1 Rule.

2 2 We will also produce evidence that at the

3 present time we are regulated at what we call Pinellas

4 County's East Lake Road well Field, to the water crop,

5 and that is something that is an inhibiting factor in

6 one of our permits, and it is on those two bases that

7 we intend to prove to the Hearing Officer that we have

8 legitimate standing to be here to contest this

9 particular Rule.

10 On.this question of exception, -- and if I

11 may just indulge everybody by saying that those who

12 have intervened, I have filed a memorandum of law with

13 you, and if all of the Intervenors wouldn't mind at

14 some time in the proceeding, I have quite a number of

15 those documents, one of which Mr. Blain has right

16 there, and if you wouldn't mind picking your copy up,

17 I have it for you here.

18 That particular Rule, which permits an

19 exception, of course, there's going to be some testimony

20 on that, I believe, either by us or some of the witnesses,

21 possibly, from the opposition in this case. On its

22 face, of course, the Rule permits the Board to grant

23 an exception at its complete discretion. There are no

24 objective guidelines.

25 And it is our position, if we can so prove


-1anabaag OFCAanaba 'COURT po ts
263 PINELLAS COUNTY BUILDING
0SO FIFTH STREET NORTH
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1 by the weight of the evidence in this case, that that

S2 particular discretionary clause adds nothing to

3 16J-2.11(3), which is challenged, and that, in fact,

4 allowing the Water Management District to determine

5 this matter by its whim or caprice, without any

6 subjective guidelines -- or-rather, objective guidelines,

7 certainly is violative of law and adds nothing to the

8 Rule.

9 As far as the hydrological bases, we have

10 claimed in our Petition, as you note, a number of

11 reasons why we feel that these are invalid. We are

12 following the Agrico Chemical Company case, which is

13 cited in our brief, as to the number of different types

14 of attacks which can be legitimately placed before the

15 Hearing Officer.

16 The pivotal question, of course, is whether

17 the Rule obviously exceeds the statutory authority,

18 and impermissibly conflicts with the provisions of

19 Chapter 373. Those are two grounds which I have lumped

20 in my opening statement.

21 We believe that we will produce evidence in

22 this case to show that it does exceed such authority,

23 and that it does impermissibly conflict with the

24 provisions of Chapter 373. The most important statute

S25 which we will be talking about, which is contained in


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Chapter 373, is 373.223(1)., and in fact that is one

of the very focal points, if not the major point of

attack by the Petitioner in this case.

Briefly stated, that particular provision,

which is in Part II of Chapter 373, sets forth the

criteria which a Water Management District must look

to in granting a consumptive use permit.

Naturally, not knowing the Hearing Officer's

background, some time we are using these terms, but

obviously a consumptive use permit is one for the

withdrawal of water in certain quantities at a certain

particular location which is owned, usually, by the

applicant involved.

And Part II.of Chapter 373 is the section

which is directed towards the procedures which should

be followed in obtaining such a consumptive use permit.

These three criteria that are required by

373.223(1) are very clearly set forth, and the statute

states: "To obtain a permit pursuant to the provisions

of this chapter, the applicant must establish that

the proposed use of water:

"(a) Is a reasonable-beneficial use as

defined in the statutes"-- and that definition,

contained in another section, in a prior section of

373, states or defines reasonable-beneficial use as


tanahag & anatbag OFFICIAL COURT REPORTERS
203 PINELLAS COUNTY BUILDING
10 FIFTH STREET NORTH
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I ( the water in such quantity as is necessary for

2 economic and efficient utilization for a purpose and

3 in a manner which is both reasonable and consistent

4 with the public interest.

5 Now, the water crop theory, when you look at

6 these three conditions, which, one, it is a reasonable-

7 beneficial use; two, it will not interfere with the

8 presently existing use, according to the statutes, a=A

9 three, which is consistent with the public interest --

10 we contends the very foundation of our attack, that

11 the water crop theory, which ties the amount of water

12 which you can withdraw from a particular piece of

13 property to the amount of water that can be withdraw-

S14 as it relates to land ownership, adds a fourth ground

15 or criteria to the other three.

16 We are supported prima facially by the fac-t

17 that the very first part of 16J-2.11 starts out,

18 Madam Hearing Officer, by saying that in order to

19 obtain a consumptive use permit, the applicant must

20 show reasonable-beneficial use that it won't interfere

21 with the rights of existing legal uses of water, and

22 is consistent with the public interest.

23 So it is quite obvious that in the structure

24 of the Rule itself, that the water crop is something

]) 25 else and something different and something added to


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these particular criteria, rather than anything that

would .be contained in these three particular items.

As a matter of fact, when a consumptive use

permit is issued, these particular criteria are found

either to exist or not exist by the District, and they

also find whether you do or do not exceed the water

crop, and whether or not an exception will be or will

not be granted. That's the form in which the consumpti e

use permits are issued.

So we feel that in viewing this testimony,

these are really the fundamental principals of law

that you should consider in ruling on this matter, and

we have provided the legal authority for these rules,

and they are really replete. There are many cases that

say this.

But first of all, there is a rule of

construction on statutes that says if a statute

specifies a particular procedure or establishes a

particular criteria on a subject, an agency cannot

amend or expand that statutory provision, for if it

does, it is indeed amending, as if it were the

legislative body, that particular act, and therefore

it is acting outside of its legislative authority.

The other rule is a rule which has been

espoused in Florida since the early nineteen hundreds,


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and that is if there is any doubt that an agency has

legislative power to enact a rule, that that must be

construed against the agency and the validity of the

rule. It is sometimes referred to as, indeed, beyond-

and-to-the-exclusion-of-every-reasonable-doubt rule.

And of course that must be melded with our burden,

which we accept here.

But what we are simply saying is, when the

Hearing Officer listens to the testimony, and then

you look in Chapter 373, you're not going to find any

statement which would lead a reasonable person to

believe that the legislature intended to give the

Water Management District the ability to arbitrarily

or scientifically establish an amount of water and tie

it to land ownership.

Again, not knowing the hydrological background

of the Hearing Officer, it is obviously rather

ludicrous, is it not, for someone to have an acre of

land which Weeki Wachee Springs is on, and say that

you can only get a thousand gallons per day, when you

can get a thousand gallons in one second.

So we think we need to look at the testimony

in this case and relate it and see if we can find some

rule somewhere which will indicate to the Hearing

Officer that you can tie land ownership to the amount


ahttag & anabagOFFICIA oLcouRT REPORTERS
263 PINELLAS COUNTY BUILDING
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1 of water withdrawal; and obviously, we contend that

. 2 you cannot.

3 There is another aspect which is just as

4 important in looking at whether or not the legislature

5 intended to grant authority to promulgate the water

6 crop, and that is, the staggering economic cost to the

7 public, and to public water supplies, if the Rule is

8 applied, and that will be, of course, the subject of

9 some substantial testimony.

10 We will present a study which indicates the

11 amount of acreage owned by public water supplies all

12 over the state, and the amount of acreage which would

13 be required to obtain additional land if the water crop

\ 14 is applied to these respective municipalities, including

15 our own.

16 And I believe that the Hearing Officer will

17 ultimately find that you are going to-see that they

18 are going to have to acquire such additional and

19 substantial expansive territory that the economics of

20 the thing means that we're literally going to have

21 water which is more expensive than gasoline, even at

22
rising prices.

For example, I think we will show evidence

24 that Jacksonville, just as one example, has a daily

25 flow of 57.77 million gallons of water. Now, I'm


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263 PINELLAS COUNTY BUILDING
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1 talking about supplying the inhabitants with potable

2 water in the City of Jacksonville. This amount of

3 water is produced out of eleven acres of land.

4 The water, if the water crop was applied,

5 you would have to have just to keep them even right

6 now, 57,770 acres, or 85.58 square miles of territory

7 that the City of Jacksonville would have to loan,

8 lease or otherwise control in order to meet this very

9 stringent and what we think is an unreasonable test

10 promulgated by the Water Authority.

11 So we are going to be presenting testimony

12 that the Rule is arbitrary and without rational basis

13 in fact, because it is hydrologically invalid as far as

14 it applies to a single--.piece of property.

15 Now, one of the purposes I envision of an

16 opening statement is to advise the Hearing Officer as

17 to what both sides of the coins are, and certainly I

18 don't pretend to be clairvoyant in telling you what

19 defense Mr. Blain is going to put up as far as his

20 side o the case is concerned.

21 But I think that we must stress at this

particular point that we are talking about a rule which
23 does not apply District-wide. It applies to a

24 consumptive use permit which a person is asking for,

25 for a specific piece of property. That's what we're


anabag Eanat OFFICIAL COURT REPORTER
263 PINELLAS COUNTY BUILDING
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1 talking about.

2 2. We're not talking about a theoretical concept,

3 or whether it's good or whether it's bad. We're talking

4 about John Q. Public with a piece of land wanting to

5 go in and get a consumptive use permit, and having to

6 face a rule which says, if you want X number of gallons

7 of water, you have to show us you own X number of acres

8 of land.

9 We're not talking about anything else, and

10 I think there's going to be a great try here to muddy

11 the waters as far as that aspect of the case is

12 concerned. But again, we must stick to the Rule, and

13 what it says, and we must stick to what it applies to.

14 Now, I think you will be told by the evidence

15 is that what happens is that they take this big Distric

16 or a basin, and they figure out how much rainfall comes

17 in, and they figure out how much goes out, and you will

18 see in the Rule that it says rainfall less

9 evapotranspiration, which is a big word -- I think

that's just like lawyers, we use big words so we can
21
be the ones that are the only ones that can interpret

it -- and I'm not artful in that -- but I think

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evapotranspiration means the consumption of all water

24 there in the eco-system, by plants, by runoff, the

25 whole works, what goes out, not just evaporation,


aabaaba OFFICIALS. COUR REPORTERS
283 PINELLAs COUNTY BUILDING
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1 that's just part of it.

i 2 And so then they get what's left, and they

3 say, well, we know we have a certain -quantity of water,

4 we have a certain amount of land, so we just divide

5 the amount of land into the amount of available water,

6 and then we get a thousand gallons of water for every

1 acre in the District.

8 I think that originally is the way that

9 concept arose, which I might add I think the evidence

10 will show that the Southwest Florida Water Management

11 District is.the only water management district -- and

12 I think this is a critical point -- in the whole

13 State of Florida, that envisions it has statutory

14 authority to promulgate a rule called the Water Crop

15 Rule, because the other water management districts

16 don't do this.

17 If I want a consumptive use permit in Southmud,

18 I don't have to show them the amount of acreage. I

19 have to show them that my piece of property and all of

20 its peculiar hydrologic aspects will support whatever

21 I want to withdraw.

22 Now, if I am going to harm the resource, or

23 if I'm going to do some other things to my neighbors,

24 and I'm going to interfere with the legal use of water,

P 25 then they're not going to let me have it, or not let me


anablag ^& IanabaJg oFmc.L coufrr I*EPORIER
263 PINELLAS COUNTY BUILDING
150 FrIFH STR r NORTH
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have as much, but they're not going to require me as a

condition precedent to coming in to them and asking

for water to show them that I arbitrarily own so many

acres of land.. may own a desert, yet they would

say I_ was entitled to a thousand gallons of water per

day per acre.

Spo we are going to produce hydrological

testimony which will show you that on its face, as it

is applied to a piece of land, anywhere in the District,

no piece of land is subject validly to the water crop

theory, from a hydrological standpoint, for really

basically five reasons.

First of all, the regional geology of the

land varies significantly over the entire District,

and so you can't apply it to any particular piece of

land.

That rainfall varies in quantities over the

Entire District.

That the depth of the water table which

controls evapotranspiration varies significantly over

the District.

And that the depth of the confining layers

vary which controls the leakance, which means the amount

of water which will seep through the clay layer through

the clay layer through the earth into the aquifer.


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And lastly, as a fifth item, the presence

or absence of an artisian aquifer -- that is, water

under pressure -- is vital, and varies throughout the

District. You may own land two miles from me, and I

may have an artisian system, and you may not, and

that's going to vary, and it's going to determine the

question of how much water you might be able to get

out of your land, as opposed to me.

Now, we are going to hopefully, with some

indulgence, and maybe a few questions of the Hearing

Officer, present initially some very basic

hydrological information for the Hearing Officer's

consumption before we get into these technical items.

We hope we won't be lengthy, but we think

it will be helpful to you in making your determination,

and we ardently solicit your questions in that regard,

because it's important to us in carrying our burden,

and it is our responsibility to actually give you a

foundation before you can understand these particular

points that we have, that we are relying on in this

matter.

Now, another point that we make -- and this

is something that, again, you are going to have to

glean as a basis of evidence, and then apply the law

to it -- we are going to present the facts to you,


ICabUg tJ Sn OFFICIAL COURT REPORTERS
263 PINELLAS COUNTY BUILDING
180 FiFTH STREET NORTH
ST. PETERSBURo. FLORIDA 33701


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243 PINELLAS COUNTY BUILDING
1SO FIFTH STREET NORTH
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_ad then you apply the law to it =- but recently, the

Supgree Court, in the Village of Tequesta case, which

is reported at 371 So.2d 663, came out with a landmark

-ecision, and that decision says many things, but we

sall it to your attention and advocate it in these

proceedings for only one straightforward reason.

The specific holding of the Code addresses

its interpretation of Chapter 373, and what it is

interpreted as meaning, and what is its actual intent,

what is the essence of the intent of Chapter 373, and

that decision holds that common l-&w right to the actual

water underneath one's land was abrogated by Chapter

373, Florida Statutes. No long does a person have a

property right in the water underneath his land. In

final argument, I will go briefly into the facts that

surrounded that, which would be more of a clarifying

statement than what I am making now.

But now, the courts have rules you need a

permit, you need a consumptive use permit, which again,

as I said, takes you back to the foundation of these

three criteria that the legislature has said that you

need in order to get a consumptive use permit.

Now, the water crop concept has its basis or

foundation in the banking of water. This is the point

we make. As far as the Tequesta decision is concerned,







1 the banking of water, and the testimony and witnesses

2. will, I think, clearly, if not inferentially show this

3 to the Hearing Officer.

4 Water is rationed under the water crop

5 theory, or allocated on the basis of the amount of

6 land owned. Even if the land owner does not wish to

7 use his water, he still is entitled to one thousand

8 gallons per day per acre of land owned.

9 For if the Rule is strictly applied, and

10 the allocation is given equally throughout the District

11 obviously those people are banking water, whether

12 they want to use it or not. And if that concept

13 is true, then those people must of necessity utilize

14 or have an ownership right in that particular water.

15 Otherwise, it couldn't reserve that to the individuals.

16 So what we are saying is that we're going to

17 produce testimonyupon which you will hopefully arrive

18 to the inescapable conclusion that Tequesta eliminates

19 the water crop theory, that the water cannot be banked

20 or rationed, that no land owner has a right to set any

21 amount of water, he must apply under Section 373.223(1)

22 and comply with those three criteria.

23 Now, what he gets is not a thousand gallons

24 of water per day per acre, but what his peculiar

S 25 hydrological aspects of his property would permit him


anahbag & Canahag OFFICIAL COURT REPORTERS
263 PINELLAS COUNTY BUILDING
150 FIFTH STRmE NORTH
ST. PETERSBURG, FLORIDA 33701




36


I to withdraw without harming the resource.

SAnd lastly and I a glad that I know that

8 everybody here, including me, knows that I'm about

Sr ady to quit iut lastly, we are going to produce

5 testimony for this Hearing Officer's Consumption,

v Svidence concerning actions of the Joint Administrative

SProcedures Committee on this very Rule.

8 We think that we will present evidence that

this Rule specifically was addressed by the APA

10 Committee, and unanimously held to be without

11 legislative authority. We think The records will show

i2 that Mr. Blain was there and urged the numerous

13 ; arguments and theories, and in particular statutes

S1 which he addresses to you now.

15 We also realize that this is not binding

I on you, and we don't contend that it is, but we feel

17 that it should be given great weight in your

18 consideration.

19 We will present evidence that initially, on

SFebruary 9 of 1976, the Committee sustained its staff

21 objection to the specific Rule for very much of the

2 reasons that I was telling you throughout these

23 whole proceedings, up to this point, and that is, that

24 Rule 16J-2.11(3) really does add a fourth ground to

O 25 373.223(1), and that in fact they are inhibiting the

a g nab OFFICIAL COURT RiPOfRTRS
263 PINELLAS COUNTY BUILDING
350 FIFHr STREET NORTH
ST. PETERSBURG. FLORIDA 33701







1 legislative definition of what a reasonable-beneficial

S2 use is.

3 I think that you will also find that the

4 Committee looked into this question of whether or not

5 you can grant an exception and totally rejected it,

6 and that they looked into the economics of this thing

7 and were really horrified about what it really means

8 to the people of the State of Florida, not only to

9 Pinellas County, but the people of the State of Florida

10 if they have to go out and either buy water rights or

11 own, lease or control one acre for every thousand

12 gallons of water that they would give to the public

13 for human consumption.

14 The chain of circumstances did not stop

15 there, because after the objection, Swiftmud on two

16 occasions attempted to amend its rules to satisfy

17 the APA Committee, and those proceedings were held

18 to review those particular amendments on June 2 of

19 1976 and August 24 of 1976, and again, the Committee

unanimously rejected the proposed amendments, simply

21 because, again, there are only three criteria, not

22 four, for granting to anyone in the public the right

23 to a consumptive use permit.

24 So in conclusion of my opening statement,

0 25 what we hope to prove, we hope to prove everything


abtfaU & iwtbt oFICUAL COURT REPORTERS
263 PINELLAS COUNTY BUILDING
180 FFTH STREET NORTH
ST. PETERSBURG. FLORIDA 33701




38


1 that we really have said in our petition to you, and

2 we think that we're going to give you the factual

3 basis and background to support the Hearing Officer's

decision invalidating this particular Rule, and hold

5 that it is not with legislative authority.

6 Thank you, ma 'am.

7 THE HEARING OFFICER: Thank you.

8 Mr. Apgar.

9 MR. APGAR: West Coast Regional Water Supply will

20 reserve its opening statement until the beginning of

11 its case.

12 THE HEARING OFFICER: Mr. Blain.

13 --MR. BLAIN: I'm not sure I understand the

14 proceeding at this stage here.

15 -THE HEARING OFFICER: If you would like to

16 reserve your opening statement, you may.

17 MR. BLAIN: We will reserve our opening statement.

18THE HEARING OFFICER: I just wanted to give all

19 the parties an opportunity to make an opening statement

Sat this time, if they so desire.

21 MR. BLAIN: We'd like to make our opening

22 statement, but we don't quite understand when the

23 West Coast case will open.

24 THE HEARING OFFICER: It is my understanding that

25 they will present their witnesses immediately after


Ia'mhig c EIsratbag OFICUA. COURT REPOWRERS
263 PINELLAS COUNTY BUILDING
ISO FIFTH STREET NOWTH
Sr. PsTrsrraU FLORIoA 33701




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1 Pinellas County.

S2 MR. BLAIN: Immediately after Pinellas County?

3 If I might reconsider, I'd like to give an opening

4 statement, and I may also see fit to give it again,

5 if it becomes necessary to maintain a separate record

6 on this. I thought that the two cases were to be

7 consolidated.

8 THE HEARING OFFICER: They are consolidated for

9 hearing purposes.

10 MR. BLAIN: I understand.

-11 Section 120.56(1) allows-any person

12 substantially affected by a rule to seek an

13 administrative determination of the invalidity of the

14 rule on the ground the rule is an invalid exercise of

15 delegated legislative authority.

16 We take the position that the Co-petitioners

17 in these proceedings are not substantially affected by

18 the Rule they seek to challenge. In proceedings of

19 this sort, the burden of proof is on the petitioner to

20 prove the existence of standing. And we would cite

21 the Agrico case, which has been cited by Mr. Allen in

22 his brief, 365 So.2d 759, and the State Department of

23 Health and Rehabilitative Services versus Alice P.,

24 367 So.2d 1045.

25 In the Petition filed in this cause by


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ST. PETERSBURO. FLORIDA 33701




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Pianllas County, the County attempts to show that it

has been or will be substantially affected by the

challenged Rule by arguing:

First, that a pending application for

modification of a permit for the Cross Bar Well Field

will be probably denied by the District because the

requested quantities will not comply with the water

crop limitation in the challenged Rule.

Also, without an increase in the amount of

water it receives, Pinellas County alleges that it

will not have an adequate supply of water for its

population beyond calendar year 1980. The County

asserts that irreparable harm will occur to its

population unless increased amounts of water withdrawal

for consumptive use purposes are permitted by the

District.

The West Coast Regional Water Supply Authority

in its motion to intervene attempts to establish

standing to challenge the subject Rule by asserting

similarly that the requested modification of the permit

for the Cross Bar Well Field will not comply with the

water Crop limitation, and therefore could be denied

by the District on that basis.

The remaining Petitioner, the City of St.

Petersburg, asserts that it has standing to challenge


U & San OFFICIAL COUNT REP0RTWRS
263 PINELLAS COUNT BUILDING
tSO FIUr STREET NORTH
ST. PrTeaurG. FLORIDA 33701


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the subject Rule for the same basis, that the

requested modification for the permit at Cross Bar

will not comply with the water crop limitation, and

therefore could be denied by the District on that

basis, and that unless the modification is granted,

the City says it will begin to experience problems

in supplying water for the consumptive use needs in

or about 1984. No immediacy.

The District does not believe that the

Petitioners will be able to prove the allegations

relating to standing in this case,"and intend to put

them to that proof.

In order to have standing to challenge the

Water Crop Rule, we respectfully submit that the

Petitioners must demonstrate with competent and

substantial evidence that injury or the threat of

injury from this Rule is both real and immediate, not

conjectural or hypothetical. An abstract, imagined

injury is not enough to confer standing. The District

respectfully submits that the Petitioners be required

to demonstrate that they have sustained or are

immediately in danger of sustaining some direct injury

as a result of the challenged Rule.

We believe that the evidence in this case

will demonstrate conclusively that the existing permit


anahag a g AL CURT REPORTERS
283 PINLLAS CouNTY BUILDING
ISO FITH STREET NORTH
ST. PETERSBURG. FLORIDA 33701







1 for the Cross Bar Well Field already allows withdrawals

S2 far in excess of the water crop for the well field.

3 Further, that the Petitioner will be unable to

4 demonstrate that the Water Crop Rule has ever been

5 the sole reason for denial of a permit application.

6 You should be aware of the fact that the

7 application for modification of the existing permit is

8 pending before Southwest Florida Water Management

9 District, and that the evidentiary public hearing on

10 that application has not yet occurred, that it is

11 scheduled to occur next month. Itwould be highly

12 presumptuous for me at this juncture to attempt to

13 pre-judge the findings of fact that the District

S14 Board might reach at the conclusion of that hearing.

15 However, for the purpose of this proceeding,

16 we do not believe that the Petitioners will be able

17 to demonstrate that there is any likelihood that their

18 application will be denied solely as a result of

19 non-compliance with the Water Crop Rule. Hence, they

20 will be unable to carry their burden and establish

21 the necessary immediacy of interest required to

22 demonstrate standing sufficient to support this

2 proceedings.

24 Further, the evidence will show that the

25 present permit of 15/20 has not yet been used. The


eamIabtm &e Ilaabag oFFICIAL COURT REPORTERS
263 PINELLAS COUNTY BUILomIG
150 FIFTH STREaI NORmT
ST. PriEsaRURG. FLORIDA 33701







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W41 L aOPPICIAL COURT REPORTERS
263 PINELLAS COUNTY BUILoING
SO FIrTH STRaET NORTH
ST. PETERSBURG. FLORIDA 33701


withdrawals have never commenced. The pipeline has

not yet even been completed.

Now, earlier I mentioned the fact that

16J-2.11(3) is not a rule standing by itself. Under

Section 120.52, (14), a "rule" is defined to mean

each agency statement of general applicability that

implements, interprets or prescribes law or policy,

or describes the organization, procedure or practice

requirements of an agency, and includes any form which

imposes any requirement or solicits any information

not specifically required by statute or by an existing

rule.

Under the rules of the District, an

applicant seeking to obtain a consumptive use permit

for a new consumptive use must, comply with the

conditions and provisions within Section 16J-2.11.

This entire Rule sets out the District's policy

concerning those circumstances where consumptive uses

of water will be authorized or will be denied.

Subsection 3 within this Rule is an integral part of

the entire Rule, but it does not, in and of itself,

implement, interpret or prescribe law or policy. As

this case is presented to you, I believe this will

become more clear.

The District contends that it is improper to


f i





44

1 Aetermine the validity of Section 16J-2.11(3) without

/ 2 oerts+ruing it in parie material with the remaining

3 portions of the Eule in which it is imbedded, that

4 being 16J-2.11, and the remaining portions of the

5 District's regulatory program set forth in Chapter

6 1J -2.

7 N. Q, what is the legal test of rule validity?

8 The controlling law is found within the decision of

9 the First District Court of Appeal in the case of

10 Florida Beverage Corporation versus Wynne, 306 So.2d

11 20QQ where the Court indicated that where the empowerin

12 provision of a statute states simply that an agency

13 may:

14 "Make such rules and regulations as may be

15 necessary to carry out the provisions of the act,"

16 the validity of regulations promulgated thereunder will

17 be sustained so long as they are reasonably related

18 to the purpose of the enabling legislation, and are

19 not arbitrary or capricious.

20 Similarly, the First District Court of

21 Appeal laid out tests for determining validity of

22 proposed rules in the Agrico case. This decision is

23 pertinent because the issues in a "draw-out" proceeding

24 under Section 120.54(4), relating to rule validity,

S25 are virtually identical to the issue pending in this


ItEabua & Kanaha AL COM- cowrPOME
263 PINELLAS COUNTY BUILDING
150 FIrT STREET NORTH
ST. PrETERsURO. FLORIDA 33701







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case. In the Agrico decision, the Court spelled out

'the test as follows:

The burden is upon the party who attacks

the rule to show, one, that the agency -- in this case,

the District -- by adopting the rule, has exceeded its

authority;

Two, that the requirements of the rule are

not appropriate to the end specified in the legislative

act;

Three, that the requirements contained in

the rule are not reasonably relatedto the purposes of

the enabling legislation; or,

Four, that the proposed rule or the

requirements thereof are arbitrary or capricious.

A capricious act is regarded as one which

is taken without thought or reason, or is taken

irrationally. An arbitrary decision is one not

supported by facts or logic, or one which is

despotic.

These cases are pertinent to the proceeding

this morning, because like the Florida Beverage

Corporation case, the District received general

rule-making authority in Chapter 373. See for example,

Section 373.113, which provides:

"In administering the provisions of this


Lanabay & OCaIabCag oFCOAL.RT REPORTERS
263 PINELLAS COUNTY BUILDING
ISO FIFTH STREET NORTH
ST. PETERSBUR,. FLORIDA 33701





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1 ~Qe4pter the governing Board shall adopt, promulgate

S 2 ad enforce such regulations as may be reasonably

3 a .eessary to effectuate its powers, duties and functions

4 E~s-suant to the provisions of Chapter 120."

5 I also refer you to Section 373.171(1) (a)

6 which provides, in pertinent part:

7 "In order to obtain the mostbeneficial

a uae of the water resources of the State and to protect

9 t-be public health, safety and welfare, and the

10 interest of the water users affected, governing boards,

11 by action-not inconsistent with theother provisions

12 of this law and without impairing property rights,

13 may:

14 "(a) Establish rules, regulations or orders

15 af-fecting the use of water, as conditions warrant;

16 (b) Regulate the use of water within the

17 affected area by apportioning, limiting or rotating

18 uses of water or preventing those uses which the

19 governing board finds have ceased to be reasonable or

20 beneficial;

21 "(c) Make other rules, regulations and orders

22- necessary for the preservation of the interest of the

23 public and of affected water users."

24 We respectfully submit that the challenged

S25 portion of Rule 16J-2.11,in order for it to be


sCUt2bLg & S bl OFFICIAL COURT REPORTERS
260 PINELLAS COUNTY BUILDING
150 FIFTH STRrET NORTH
ST. PETERSBURG. FLORIDA 33701


~-1' ---- -IsY----~PIL- ;i-L~*-rr~l~l W~-IIIIC-IIRY







1 determined an invalid exercise of delegated

( 2 legislative authority, the Petitioners must demonstrate

3 That the District has exceeded its authority

4 in adopting the Rule;

5 That the challenged portion of the Rule is

6 not consistent with or appropriate to the purposes

7 and aims and objectives of the Florida Water Resources

8 Act of 1972;

9 That the challenged portion of the Rule is

10 not reasonably related to the purposes of the Florida

11 Water Resources Act -f 1972; or

12 That the challenged portion of the Rule is

13 arbitrary or capricious.

14 Perhaps at this point it is appropriate to

15 recall that the burden of proof in this proceeding

16 does not lie with the Water Management District. It

17 is clear that the Petitioners in this case carry the

18
18 burden or demonstrating that the Rule is invalid by

19
a preponderance of the evidence.

20
The degree of proof required to constitute

21
21 a preponderance of the evidence in a proceeding is

2 necessarily a judgmental decision. It has been

described as that degree of proof which is sufficient

2to lead reasonably cautious people to the decision --

25 that is, a reasonable belief in the truth of facts


ttnaIbq & jKanahbay OFFICIAL COURT REPORTERS
263 PINELLAS COUNTY BUILDING
150 FIFTH STREET NORTH
ST. PErrERBURo. FLORIDA 33701




48

1 necessary to -su4stan the decision must result.

2 The challenged portion of Rule 16J-2.11 is

3 a portion of a rule that was adopted to implement a

4 program for a regulation of Qoasumptive uses of

5 water within Southwest Florida Water Management District,

6 a District consisting of approximately fifteen counties

7 along the western poQrton of the State of Florida.

8 In the final analysis, its validity must be

9 determined by deciding whether it is consistent with

10 the policies and purposes of the Florida Water

11 Resources Act of 1972. Statements -f legislative

12 intent and legislative purpose abound within the

13 Florida Water Resources Act of 1972.

14 While this may be somewhat tedious, it is

15 important for the record to reflect and for the

16 Hearing Officer to be aware of the comprehensiveness

17 of the legislative effort to manage water resources

18 within Chapter 373. 373.016 sets forth a declaration

19 -.of policy:

20 "The waters in the State are among its

21 basic resources. Such waters have not heretofore been

22 conserved or fully controlled so as to realize their

23 full beneficial use.

24 "It is further declared to be the policy of

r 25 the legislature to provide for the management of water


Esanahag & *Canatbg OC-Lou RT REPoRms
263 PImNLLAS COUNTY BUILDING
IO5 FnIFH TSTiT NORTH
rT. PETCRSBURG. FLORIDA 33701




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1 and related land resources; to promote the conservation

2 development and proper utilization of surface and

3 ground water; to develop and regulate dams, impoundment,

4 reservoirs, and other works and to provide water

5 storage for beneficial purposes; to preserve natural

6 resources, fish and wildlife; otherwise to promote

7 the health, safety and general welfare of the people

8 of this state.

9 "It is therefore the intent of the legislature

10 to vest in the Department of Environmental Regulation

11 or its successor agency the power and responsibility

12 to accomplish the conservation, protection, management

13 and control of the waters of the State, and with

14 sufficient flexibility and discretion to accomplish

15 these ends through delegation of appropriate powers

16 to the various water management districts. The

17 Department may exercise any power herein authorized

18 to be exercised by a water management district;

19 however, to the greatest extent practicable, such

20 power should be delegated to the governing board of

21 the water management district."

22 The Water Resources Act required the

23 Governing Board of the District to keep in mind its

24 overall objectives, and to assure the consumptive uses

( 25 are not harmful to the water resources of the area


iClb ag N OFFICIAL COURT REPORTERS
263 P1NILLAS COUNTY 3UILtOIN
150 FiFH STREET NORTH
ST. PETERSURG. FLORIDA 33701
|m





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1 when it elects. to require permits for cousaiptive

2 uses.

3 Perhaps most significantly, the Legislature

4 addressed the particular conditions that must be shown

5 in order to obtain a consumptive .use permit. 373.223(1

6 provides:

7 (i) To obtain a permit pursuant to the

8 provisions of this chapter, the applicant must

9 establish not the Water Management District, the

10 applicant must establish that the proposed use of

11 water is a reasonable-beneficial usA as defined in

12 Section 373.019(5), and will not interfere with any

13 presently existing legal use of water, and is

S14 consistent with the public interest.

15 The definition for "reasonable-beneficial

16 use" is:

17 "The use of water in such quantity as is

18 necessary for economic and efficient utilization for a

19 .purpose and in a manner which is both reasonable and

20 consistent with the public interest."

21 Additionally, the Governing Board is

22 authorized to reserve from consumptive use water in

23 such locations and such quantities and for such

24 reasons as, in its judgment, may be required for the

25 protection of fish and wildlife, or for the public


tIabtJ ^ 3 ba OFFICIAL COURT REPORTERs
263 PINELLAS COUNTY BUILDING
tO FIFT STNCET NORTH
ST. T'OtnsUnRG. FLORIDA 33701


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1 safety.

Si2 Against this background of legislative intent

3 I'd like to turn now to the function of the Water Crop

4 Rule in the District's regulatory program.

5 The.. development of objective criteria to be

6 used in evaluating an applicant's request for water

7 was a difficult problem for the Water Management

8 District, given its broad responsibilities for both

9 protection of the water resources within its

10 jurisdictional area, and enhancement of beneficial

11 use of water within its area.

12 This proved doubly difficult because of the

13 volume of permit applications anticipated at the time.

S14 The regulatory criteria had to be sufficiently clear

15 and objective enough to allow the staff to evaluate

16 the effects of the requested withdrawal on the

17 adjacent water resources, the biological environment

18 and neighboring users.

19 The intention was to develop a set of

20 regulatory criteria which would permit large numbers

21 of applications to be handled by the Board in a

22 grouped format.

23 At the-time the Rule was being adopted,

24 the Water Management District was aware of the fact

9 25 that it had issued in excess of fifty thousand well


tanabagl & anabatg onFICIAL. COURT REPORTERS
263 PINLLAS COUNTY BUILDING
150 FIFTH STRELe NORTH
ST. PrTERSBURO. FLORIDA 33701





52

.1 construction permits during the preceding six years,

f 2 and it was aware of the vast number of applications

3 it was facing in attempting to implement the Water

4 Resources Act of 1972.

5 In the development of the regulatory criteria

6 the Board approved certain guidelines which were

7 intended as a reasonable and objective way to

8 determine how much water can safely be pumped in a

9 given area. These appear in the rules at Sections

10 16J-2.11(2), (3) and (4).

11 Insofar as the Water Crop-Rule itself is

12 concerned, the idea that our total withdrawals should

13 be limited to the water crop or yield of a given area

14 was established as a beginning point against which

15 permit requests for larger quantities of water could

16 be evaluated.

17 It is used as an objective regulatory tool

18 that says, basically, man should be limited to the

19 use of the amount of water which is replaced annually.

20 Any amount requested less than the water crop of a

21 given area is considered a relatively routine request,

22 barring other limiting factors such as a high likelihood

23 of salt or other contaminants.

24 On the other hand, amounts requested in

S25 excess of the water crop receive closer scrutiny as


Kla iLbaly & pauEabgOFICIAL COURT REPORTERS
243 PINLLAS COUNTY 8BULDoIN
150 FIFTH STREET NORTH
ST. PETERSBURG. FLORIDA 33701







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Canaha3 & ZtSanaa OFFICIAL COURT REPORTERS
263 PINEL.AS COUNTY BUILDING
ISO FIFTH STREET NORTH
ST. PETERSBURG. FLORIDA 33701


these requests represent those which are more likely

to cause permanent or long-term damage. The

calculated water crop provides a threshold. which is

used in the initial evaluation of consumptive use

permit applications. It is not considered by the staff

or by the Board as an absolute limitation or a

positive allocation of water availability for

particular tracts of land.

When the criteria in the Water Crop Rule is

exceeded, the Governing Board, for good cause shown,

can grant an exception to the Rule. This exception

is based upon the concluding section of Rule 16J-2.11(5

which provides:

"The Board for good cause shown may grant

exceptions to the provisions of paragraphs 2, 3, 4, and

10 of this Rule when after consideration of all data

presented, including economic information, and finds

that it is consistent with the public interest."

When one looks at the Rule in this context,

it is apparent that if the applicant can demonstrate

that the intended consumptive use is a reasonable

beneficial use, is consistent with the public interest,

and will not interfere with any legal use of water

existing at the time of the application, then the

permit will be issued.


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Thifs is completely consistent vith the

requirements of the law. The challenged portion of

h*a District's Ru~e does not shift or inatemt the

permit applicant's burden of proof. It etaE*r

provides a threshold for initial evaluation -n

fcEilitate the handling of large numbers of applioa n

ro relatively smaller quantities of vater,

The water crop is simply the aotintot oA w -fe

tlat is annually available for man's use from a given

area, or the total amount of rainfall less the amawti

of- evapotranspiration.

Investigations in West Central Florida

conducted for 1964 through 1966 indicated that for a

relatively large portion of the District, some

thirty-five hundred square miles, the sole souxce of

water was rainfall, approximately fifty-seven inches

total, per year. Outflow or discharge from the area

consisted of runoff, seventeen inches; evaptraai

thirty-nine inches; and ground water outflow,: athut are

inch. The water crop or yield here-was eighteen inches.

By conservatively estimating the amount of

water available from a given area, it can he &aatervmin-e

if an adequate supply of water is available foE c=trena

and projected needs. By using conservative estimates,

added protection against extensive reductions in ground.


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23 PINELLAS COUNTY BUILDING
1I0 FIFTH STREET NORTH
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I water storage can also be provided even during

S2 periods of prolonged draught.

3 In recent years, the rainfall within the

4 District .has averaged about fifty-two inches per year.

5 The average evapotranspiration rate is about

6 thirty-nine inches, leaving an average discharge from

7 the area, primarily through surface water runoff,

8 at approximately thirteen inches.

9 This thirteen-inch runoff is the District's

10 estimate of the amount of water annually available

11 for man's use. In other words, it's the water crop.

12 And when you convert thirteen inches into gallons per

13 acre, it comes out close to one thousand gallons per

14 acre per day.

15 No one contends that use of a water crop

16 concept of theory is bad water management practice.

17 Effective water management regulations must include

18 considerations of the overall availability of water

19 for consumptive uses.

20 The District has decided that water withdraw s

21 should be limited to the water crop, otherwise

22 reductions in storage will occur and water level

23 declines in the area can be expected. These have

24 occurred in other parts of the country. If such

C 25 practices were allowed to proceed unchecked, the water


CataIL COU Tnba REPORTER
263 PINELLAS COUNTY BUILDING
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56

I supply could eventually be dangerously affected.

9. 2 Don't misunderstand me. Because many areas

3 are connected hydrologically, either through

4 underground aquifers or surface streams, it is not

5 necessary to apply the Rule strictly to each individual

6 area of land, or even to each parcel. But one

7 application that comes in may have less than one acre

8 of land, the next application that comes in may have

four or five thousand acres of land.

10 It is only necessary that consumption not

11 exceed the water crop within a given ground water

12 basin. For this reason, it is possible to allow

13 applicants to exceed the water crop for particular

14 parcels if other parcels in the area are not

15 consuming their own water crop, and of course, if

16 other problems such as salt water intrusion and lowerin

17 of water tables can be prevented.

18 The District takes the position that quite

19 to the contrary of the position of the Petitioner,

putting in the water crop as an initial yardstick

21
threshold criteria was giving objectivity, or an

22 objective test which was not present in the general
23
law specifically setting forth the three tests.

24 This then enables the staff and the applicant

S25 to know that if his use were less than this thousand


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1 gallons per acre per day, that that may not be of

i 2 concern and need not be addressed when he has the

3 responsibility of submitting his permit and meeting

4 the tests.set forth in the statute.

5 Thank you.

6 THE HEARING OFFICER: Do the Intervenors wish to

7 make a short opening statement at this time?

8 MR. WENDEL: Citrus County would reserve its

9 right to an opening statement.

10 MRS. HAAG: We would reserve our right, as well.

11 MR. FIGURSKI: Pasco County would reserve.

12 MR. SNOW: We would reserve our argument.

13 MR. THORNTON: Sumter County, the same.

14 MR. RYDER: The same.

15 THE HEARING OFFICER: St. Petersburg?

16 MR. LINN: Yes. I realize it is in the discretion

17 of the Hearing Officer, but I have a great desire

18 to keep my opening statements short, and keep my
f
19 presentation of the evidence short. I would like to

20 withhold my opening statement and not give it until

21 just before my case, because then I can be very

22 explicit about what I will present.

23 THE HEARING OFFICER: All right.

24 You may proceed.

} 25 MR. BLAIN: I didn't understand that the City of


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address


THE HEARING OFFICER:

Please state your name and address.

My name is Arthur R. Finney, Jr. My business

is 310 Court Street, Clearwater, Florida, 33515.

THE HEARING OFFICER: Thank you.

DIRECT EXAMINATION


g attabg OFFEIAL COU REOR
263 PINmLLAS COUNTY BUILDING
150 FIFTH STNrTr NORTH
ST. PTERNsBUNG. FLORIDA 33701


St. Petersburg had a case.

THE HEARING OFFICER: They're intervening. I was

going to allow the Intervenors to make a short

statement, if they so desired. A short opening

statement.

MR. WENDEL: But none of us has an independent

petition at this point, isn't that correct?

THE HEARING OFFICER: That's correct.

MR. WENDEL: We are tied to the side we're taking.

THE HEARING OFFICER: That's correct.

MR. WENDEL: Thank you.

THE HEARING OFFICER: Petitioner may call its

first witness.

MR. ALLEN: We would call Mr. Finney.



ARTHUR R. FINNEY,

a witness herein, being first duly sworn, took the stand

and testified as follows:

EXAMINATION





59

1 BY MR. ALLEN:

S2 Q What is your position, Mr. Finney?

3 A I'm the Director of the Pinellas County Water

4 System.

5 Q And what are the duties and responsibilities of

6 the Dirertor of the Pinellas County Water System?

7 A The Director of the Pinellas County Water System

8 is responsible for providing water services to the

9 customers which it serves, which includes obtaining the

10 necessary source of water, distributing the water, and

11 providing the highest quality of service as possible at

12 the least possible cost.

13 Q Can you tell me approximately how many cities or

14 how much population the Pinellas County Water System serves

15 in Pinellas County?

16 'A We estimate that we serve.a population of

17 approximately 400,000, of which approximately 250,000 would

18 be by individual meter accounts that are directly served

19 by the Water System, and the remaining hundred fifty

20 thousand is through the wholesale customers for the cities

21 which we provide wholesale water to.

22Q What cities are the wholesale customers of

23 Pinellas County?

24 A Tarpon Springs, partly to the City of Clearwater,

25 to Safety Harbor, to Pinellas Park, and to the Pasco County


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60

I Water Authority.

2 Q oewV, do you possess any degrees from any accredIte.

3 universities?

4 A i have a Bachelor of Civil Engineering Degree

S from the Uhiversity of Florida.

6 Q M"d in respect to that particular degree, what

7 year did you obtain that?

8 A 1950.

9 Q And since that time, have you been engaged in

10 engineering or other aspects of public life?

11 A I have been engaged in engineering. I have been

12 engaged in operation of water and sewage treatment plants.

13 I have been engaged in managing water and sewer and LP gas

14 utilities, and I have been engaged in construction of water

15 and sewer facilities.

16 Q Aid for whom have you worked since 1950?

17 A Upon completion of school in 1950, I went to work

18 with the Florida State Board of Health in Jacksonville, and

19 remained with them for a period of time other than

20 approximately three months, which I worked for the Atlantic

21 Coastline Railroad. The last two and a half years, while

22 employed with the Florida State Board of Health, I was

23 Regional Sanitary Engineer in the Tallahassee office of this

24 agency.

S5 I left the Florida State Board of Health and moved


XIanabag tc I 2CaaRba aFcPcS r W o MRS
263 PlN(LLAS COUNTY SUIIDING
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1 to South Florida, and went to work as Superintendent of

2 the water and sewage treatment plant in Dade County. It

3 was in the operation of this facility that I obtained my

4 Class C Water and Sewer Operator's Certificate by

5 examination.

6 For a short period of time, I worked for a

7 consulting engineering firm, then moved over to commence

8 the Utility Engineering Section of General Development

9 Corporation. In this position, I was responsible for all

10 the engineering for the water and sewer facilities for the

11 General Development Corporation in all of its communities

12 throughout the state, and this included obtaining the source

13 of supply, designing the water facility, designing the

14 storage facilities, and for distributing the water.

15 I left General Development Corporation and

16 managed a water and sewer utility in Dade County, in which

17 I was responsible for all phases of the utility, from

18 engineering, construction, customer service, customer

19 billing.

20 When I described the General Development Company,

21 and the management of this utility, this was basically all

22 the same principals. The officers of these corporations

23 were all the same within this particular time.

24 'I moved over to the Deltona Corporation, with the

C 25 same officers, and became the chief engineer's chief sanitar

OFFICIAL COURT REPORTERS
263 PINELLAS COUNTY BUILDING
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1 engineer for the design of the water and sever and LP gas

2 facilities. We were responsible for obtaining the source of

3 water in this position.

4 And then in 1965, 1 moved up to Director of

5 Utilities, and later as Vice President of Utility Operations

6 In this position, I was responsible for all phases of the

7 utility operation, including the engineering design, the

8 customer billing, the construction of the facilities, the

9 preparation and the chief witness in rate matters, the

10 responsibility for obtaining the franchises for the

11 utilities, and any other matters that might pertain for the

12 operation of the facility.

13 From a period of 1975 until I went to work for

1 the Pinellas County Water System in 1979, I worked for three

15 consulting engineering firms, and my responsibility there

16 was for the design of water and sewer facilities.

17 Q Have you ever been qualified before any hearing

18 officers in the Public Service Commission in water management

1 and all phases of utility management?

20 A Yes, I have been qualified before the Public

21 Service Commission hearing officers as an expert in utility

22 matters. I also was qualified while with the Deltona

23 Corporation as a Class B petitioner before the Public

24 Service Commission.

25 The Class B petitioner is a person who is


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knowledgeable in the field of water and sewer, who is

permitted to practice directly before the Commission. It

is different than the attorney. The attorney, by his

right and training, is a Class A petitioner. But to be a

Class B petitioner, you have to be considered by the

Commission that you are knowledgeable in utility matters.

MR. ALLEN: Mr. Finney is tendered as an expert

in water management and all phases of utility

management.

THE HEARING OFFICER: Any objection?

MR. BLAIN: Might I ask severalquestions?

THE HEARING OFFICER: Yes, sir.

EXAMINATION

BY MR. BLAIN:

Q Mr. Finney, I didn't understand. You became

Director of Utilities in 1965, and that was what? With

Deltona?

A That was Deltona, and then later Vice President.

Q And when did you become Vice President?

A Oh, about 1968.

Q And then you remained with Deltona as a Vice

President from 1968 until 1975?

A Right, yes.

Q What were your duties during that period of time?

A I was responsible for all phases of the utility


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anabag & anaag ICAL COURT REPORTERS
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operation of water, sewer and LP gas for the Deltona

Corporation.

Q Throughout the State of Florida?

A Throughout the State of Florida.

Q And did that involve any installations up and

around this area?

A I was in responsible charge when Spring Hill was

developed. I was in responsible charge when Citrus Springs

was developed in Citrus County, when Pine Ridge was

developed in Citrus County, when Marion Oaks was developed

in Marion County.

Q And this involved all utilities?

A Water, sewer and LP gas.

Q And then in 1975, you went to work with three

consulting firms?

A Well, from '75 to -- from December of '75 to

March of '76, I was with the firm of Gray, Hart and

Associates, in Coral Gables, Florida.

Q Three months?

A Three months. From December, '75, to -- I'm sorry

-- to March, '77. I'm sorry. March, '77.

From March, '77 until October of '78, I was with

the firm of Dawkins and Associates, in Orlando. And then

from that time in '78 until I came to Pinellas County on

July 30th, 1979, I was with the firm of Envisors in Winter







1 Haven.

2 Q In Winter Haven?

3 A Yes.

4 Q And then you came to work for Pinellas County in

5 July of '79?

6 A Yes.

7 Q And during the course of handling any of these

8 matters in a consulting firm, or with Deltona, did you

9 appear before the Southwest Florida Water Management

10 District in any consumptive use permit application proceeding?

11 A I never, I never appeared before the Board on any

12 consumptive use permits. I was involved with the working

13 of some of the staff in establishing the spray irrigation

14 for the Spring Hill Sewage Disposal, but I never appeared

15 before the Board in my time with Deltona.

16 Q And did you work with the staff on obtaining

17 any consumptive use permit applications?

18 A Not in, not in, not in Swiftmud, no.

19 Q All right. So you haven't appeared before

20 Swiftmud, and you have no dealings with Swiftmud staff,

21 other than spray irrigation, which is a means of disposing

22 of treated sewage effluent, until you became associated

23 with Pinellas County in July of 1979?

24 A When I was Envisors, I had a meeting with the

S2 staff of Swiftmud to obtain information relative to the


anabag & 2Eaahag ocIAL CT couREPOr AS
263 PIcLLAS COUNTY BUILDING
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ST. PerTEaRURa. FLORIDA 33701








water and sewer and drainage elements of the Polk County

Comprehensive Plan. I met with a staff member of Swiftmud

in Bartow. I couldn't tell you his name. I met with

Gary Kuhl in the Brooksville office one morning, to obtain

what information we could;'to incorporate into these

comprehensive plans. It was more of an information-gatherin

trip than working with obtaining any permits.

Q You weren't applying for any permit?

A No, not applying for any permit.

Q That was not the subject of your meeting?

A No, that was.not the subject of the meeting.

Q All right. Since you have been employed at

Pinellas County, from July of '79, have you handled anything

to. do with the application for permit on behalf of Pinellas

County?

A Only that Pinellas County is a co-applicant for

the Cross Bar consumptive use permit that is pending at

the present time before Swiftmud.

Q That application was filed a month after you came

to work with Pinellas County?

A Even a shorter period of time. I think it was

in August, and I came basically the first of August of

1979.

Q So you haven't actually had any -- you didn't

participate in the preparation of that application, did you?


OFFICIAL COURT REPORTERS
263 PINELLAS COUNTY BUILDING
1SO FIFTH STRICT NORTH
ST. PCErRSunRG. FLORIDA 33701


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A No, no.

Q And has that application been heard before the

Board yet?

A No, it has not.

Q All right. There have been no other occasions

where you have worked with anyone applying for consumptive

use permits before Southwest Florida Water Management

District?

A That's right.

MR. BLAIN: Thank you.

MR. ALLEN: Does anybody have any further

questions?

MR. WENDEL: I'd like to understand the scope of

the tender. I believe Mr. Allen said for all utilities

Certainly we're not going to qualify him for telephone

or any of those matters, are we? I'd like to know

where he's really going with this.

MR. ALLEN: Well, all relevant matters. If there

are questions that come up to pertain incidentally to

some of the other aspects of his training, I would

think that he would be qualified to address that. But

obviously we are going to be talking about water, and -

MR. WENDEL: Well, then, Madam Hearing Officer,

I suggest the tender be very specific.

THE HEARING OFFICER: You stated you wanted to


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263 PINELLAS COUNTY BUILDING
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68

tender him as an expert in water management and all

phases thereof.

MR. ALLEN: Yes, ma'am.

THE HEARING OFFICER: Is that correct?

MR. WENDEL: So your determination, then, barring

some further objection, would be water management and

all phases thereof?

MR. ALLEN: Yes.

THE HEARING OFFICER: That is what the tender

was, and if there are no objections --

MR. BLAIN: We would object. The allegations

made in the Petition are to what the District probably

is going to do, and Mr. Pinney has testified that he's

had absolutely no exposure to the District on any

consumptive use permit.

We certainly are not questioning his

experience in working with utility companies in

general, but not for all purposes relating to water

management pending before Southwest Florida Water

Management District.

MR. ALLEN: I have to -- we might as well get this

point out and discuss it at this point, Madam Hearing

Officer.

Mr. Blain has characterized, placed a burden

on us which we are not required in law to assume, and


i3anahg i^ ja Og F SOCIAL COURT REPORTERS
213 PINwLLA COUNTY BUsILot
50 FPITH STmrr NORTH
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1 one in which, inthe essence, is not pled.

S2 We're not here required to be clairvoyant

3 and tell you what the Water Management District is

4 going to do with our particular permit. The only

5 thing that we're required to show is that we're

6 subject to the Rule, and our application can be

7 denied according to this Rule if we don't have the

8 acreage, and we allege that obviously the application

9 is far in excess of the acreage required by the water

10 crop.

11 Now, as far as Mr. Finney's application for

12 his expertise is concerned, there is no requirement

13 that I have ever heard of that he actually had any

14 contact with Swiftmud before he can testify in these

15 proceedings, and I don't think that is a pre-condition

16 for anybody. Otherwise, we would be limited, I'm

17 sure, and quite a few people wouldn't be able to

18 testify in these proceedings, and I don't think that's

19 relevant to your consideration.

20 MR. WENDEL: Madam Hearing Officer, it is my

21 understanding that his background is in water and

22 sewage utilities. It is my understanding that his

23 testimony was that that's where his experience was.

24 Now, I understand the Hearing Officer to

25 say that the tender is for water management and all


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phases thereof, and it occurs to me that Mr. Finney

has not testified as to:his experience or ability to

be an expert for water management and all phases

thereof, and accordingly, yp would object as Citrus

County's position to this gentleman being qualified

as an expert for water management and all phases

thereof.

MR. ALLEN: Mr. Finney testified on three separate

occasions during the time of his voir dire for

qualifications that he had participated in all phases

of the water aspects of supply, and I think that the.

counsel for Citrus County is mistaken, or does not

remember those particular aspects of his testimony.

MR. WENDEL: I suppose the record would reflect

that, then.

THE HEARING OFFICER: You are tendering him as

an expert in aspects of water sources?

MR. ALLEN: Water sources -- water management'

includes the production, the obtaining, the

transportation and the actual sale of water.

Mr. Finney testified that he had done at least, on

three occasions, to my recollection, for a number of

utilities throughout the entire State of Florida,

including, I might add, some of the utility works here

in this particular Southwest District. I know maybe


ig & Sabahg OFFICIAL COUnT REPORTERS
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t3O FIFTH STRaCT NORTH
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you don't know where Spring Hill is, but that is in

the Southwest Florida Water Management District.

May I ask Mr. Finney if he has ever held any

office in the American Water Works Association?

THE WITNESS: I was, I was past Chairman of the

Florida Seotion of the American Water Works Associatior

last year.

MR. 4ALEN: I see.

THE HEARING OFFICER: Any further questions of

the witness?

MR. WENDEL: Madam Hearing Officer, we're talking

about the Southwest Florida Water Management District.

Mr. Allen's opening statement made to do with the

fact this Water Management District has particular rule

which Southmud, I believe he mentioned, did not have.

This might be pertinent to understand what

experience Mr. Finney has had in Swiftmud, Southwest

Florida Water Management District, dealing with water

management and all phases thereof.

THE HEARING OFFICER: Are you asking the witness

that question?

MR. WENDEL: Yes.

EXAMINATION

BY MR. WENDEL:

Q Mr. Finney, do you know how many counties there


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are in the Southwest Florida- Water Management District?

A I believe there's about seventeen.

Q Do you know how many water basins there are?

A No, I couldn't --

Q Well,, do you know what water resources there are

in these different basins? -

A I think that in a large number of the water

basins, the water resources or the source of water is from

ground water.

Q Well, that is a very general answer, isn't it?

A Well -

Q Could you give me specifically the water sources

in the Southwest Florida Water Management District?

A The water sources?

Q Yes, sir, specifically.

A They either come from ground water, or they

come from surface water that have been dammed up.

Q Isn't that true everywhere? Aren't those

general comments?

A Are they general comments?

Q Yes. I mean, isn't that true of any place?

MR. ALLEN: You know, I don't know where we're

going. Unless there's some evidence that the Southwest

Florida Water Management District is any different

than anywhere else in Florida, which is, you know,


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1 something that I would be astonished -- I just don't

S2 see where we are going here.

3 MR. WENDEL: I thought we were talking about the

4 Southwest Florida Water Management District rules.

5 I didn't realize this pertained to any of the four

6 other water districts in Florida.

7 THE HEARING OFFICER: I think your questions are

8 going more toward the weight to be given this

9 gentleman's testimony, rather than --

10 MR. WENDEL: More his credibility than his

11 expertise?

12 THE HEARING OFFICER: I will accept the witness

13 as an expert in water management, and phases thereof.

S14 MR. ALLEN: Thank you.

15 DIRECT EXAMINATION (RESUMED)

16 BY MR. ALLEN:

17 Q Mr. Finney, is the Pinellas County Water Department

18 responsible for obtaining any water supplies?

19 A Yes, it is.

Q And what are you required to do?

21 A We are required to obtain a consumptive use permit

from the Southwest Florida Water Management District in the

operation of these water supplies.

24 Q And are you also a member of the West Coast

25 Regional Water Supply Authority?


!!a1ha1U 1 anabagJ OFFICIAL COURT REPORTERS
263 PINELLAS COUNTY BUILDING
SO FIFTH STREET NORTH
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1 A Pinellas County is a member of this Authority.

2 Q Do you have anything that you can show the Hearing

3 Officer where Pinellas County's well fields are located,

4 as far as Pinellas County Water Supply is concerned?

5 A The two well fields that's owned and operated by

6 Pinellas County is known as Eldridge Wild Well Field, and

7 it's indicated in red in this particular --

8 MR. BLAIN: Excuse me. Before this is shown,

9 maybe we can examine this exhibit?

10 THE HEARING OFFICER: Yes, sir.

11 MR. WENDEL: Is this going to be introduced in

12 evidence, Madam Hearing Officer?

13 MR. ALLEN: Well, we have it for illustrative

14 purposes, and it was not my intent to offer it in

15 evidence. But if somebody wants it to be, we have no

16 objection to that, either.

17 MR. WENDEL: Or at least a reproduction of it.

18 I don't know how else the transcript is going to

19 reflect --

20 MR. ALLEN: We will offer it in evidence. We've

21 got a number of exhibits.

22 MR. BLAIN: We object to this exhibit. It is

23 highly inappropriate. It's not consistent with the

24 facts. It is conjectural. It is speculative. We

5 think it is inappropriate. We'll be glad to go into


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I the specifics of it, or I can discuss --

2 MR. ALLEN: You know, I think we're probably

3 going to have five days worth of hearings here, if

4 everybody is going to be minutely objecting to every

5 single thing.

6 THE HEARING OFFICER: Who prepared the exhibit?

7 Do we have anyone to identify it?

8 MR. ALLEN: Mr. Finney did, of course.

9 THE HEARING OFFICER: Mr. Finney prepared it?

10 MR. ALLEN: Yes. You know, the objection is that

11 we can't show you on a map, in a general way, just

12 where are well fields are located.

13 MR. BLAIN: I am not objecting to a map that shows

14 that. But I am objecting to a map that shows other

15 things that are simply not consistent with the facts.

16 MR. ALLEN: Well, of course, the map is going to

17 be used later in testimony as to other aspects of our

18 case, and we will lay a proper predicate at that

19 particular time for doing it.

20 THE HEARING OFFICER: What is the specific basis

21 for your objection?

22MR. BLAIN: The specific basis for the objection

23 on that map is that there are certain areas that are

24 colored in yellow, and these are marked areas required

25 for consumptive use. This simply is not consistent


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76

1 with the facts, not consistent with anything, any

2 matter that is pending before the Water Management

3 District. It is highly inappropriate.

4 There is another area that is marked in

5 green, that indicates additional acres required for

6 30 mgd, and that has these located in a specific

7 location on this map, which is simply not consistent

8 with the facts.

9 MR. ALLEN: There are no facts at all, one way

10 or the other, at this point, at this particular time.

11 MR. BLAIN: But the map purports to make a fact

12 and to show certain sections of land at certain

13 townships of land that have been identified in an

r 14 improper manner.

15 MR. ALLEN: It is not identified in an improper

16 manner. There is nothing to show that they're

17 identified in an improper manner. The purpose that we

18 ask Mr. Finney is to merely. show from a geological

19 standpoint or geographical standpoint where our well

20 fields are located. That simply was the question.

21 We asked him to illustrate on a map which we

22 had, and that was the question. There can be no

23 legal objection to that. When get into these other

24 matters, I intend to lay a predicate for Mr. Finney,

S25 who prepared this, and then we'll offer this into


UCauabatt & IEanay OFFICIAL COURT REPORTERS
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"77


1 -evidence at that time. But it was not offered as to

2 0the other aspects which are on the map at this

3 particular juncture, nor did the question go to that.

4 ITHE HEARING OFFICER: Mr. Blain, I think your

5 comments would be best saved for Cross-examination,

S-when those issues are raised.

7 MR. BLAIN:. We would object to it being introduced

8 into evidence. Now, if it is used to illustrate the

9 location of the well field for the purpose of the

10 Hearing Officer, and for identification, fine. But

11 we would continue our objection to it being offered

12 -in evidence.

13 THE HEARING OFFICER: I believe that's all it's

- 14 being offered for at this point.

15 MR. ALLEN: I have not offered it into evidence

16 at this time.

17 MR. WENDEL: My objection, then, becomes one of

18 practicality. If it is not offered into evidence, to

19 permit objection to the matter, how in the world can

20 -we possibly refer to it in the record, if the record

21 is ever prepared?

22 THE HEARING OFFICER: I think you will get a copy

.23 of it, or something in, at some point.

24 MR. ALLEN: Well, let's have it marked as

S 25 Exhibit Number 1 for the Petitioner Pinellas County.



243 PINELLAS COUNTY BUILDING
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Would you be kind enough to mark that in some place,

so at least the record will show what we're talking

about here.

(Petitioner Pinellas County's Exhibit

Number 1 marked for identification.)

THE HEARING OFFICER: All right, it has been

marked as Exhibit 1 for identification.

BY MR. ALLEN:

Q Mr. Finney, so that we can clear these matters

up, what is this particular map?

A This particular map basically covers the

Southwest Florida Water Management District, the area of

the Southwest Florida Water Management District.

Q Has it been prepared by you for exhibit in these

proceedings?

A Yes, under my direct supervision, this was

prepared.

Q Yes, sir. And as far as the map itself is

concerned, what is the source of the generaloverall

topography which is indicated on the map?

A The general map itself was an exhibit that was

obtained, that was available in my office, that was obtained

from the Southwest Florida Water Management District.

Q I see. Isn't that interesting.

MR. BLAIN: Did it have the colored markings on it


uaIbag & Eautubag ^cLcouR mEpORs
263 PINKLLAS COUNTY BUILDING
I0S FIFTH STREET NORTH
ST. PCTERSSURO. FLORIDA 33701


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at -the time it was obtained?

"HZ WITNESS: No, sir.

BY MR. ALLEN:

Q Now, as far as the colored markings, have those

been placed there under your direct supervision and control

for certain purposes?

A Yes.

Q Of this hearing?

A Yes, they have.

Q All right. And do you feel that that map

accurately reflects the matters which are indicated thereon

as far as your direction and control is concerned?

A As far as the colors are concerned, yes.

Q Now, if you don't mind, would you mind again, if

no one has any further objection, showing to the Hearing

Officer on Petitioner's Exhibit 1 for identification where

the Pinellas County Well Fields are actually located, where

we get our water supply from?

MR. BLAIN: We'd like to make a continuing

objection to using this exhibit for the purpose of

illustrating anything.

'THE HEARING OFFICER: The objection is noted and

overruled.

MR. FIGURSKI: It becomes very difficult for.all

of us to rise and object, since there are some seven


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or eight of us. If there is no objection from the

other side, we would like to note, as Mr. Apgar did

earlier, from the West Coast Regional, we would like

to join in those objections, unless we otherwise

note such.

THE HEARING OFFICER: Thank you.

MR. ALLEN:. I have no problem with that.

BY MR. ALLEN:

Q All right, sir, will you show her where the

particular well fields of Pinellas County are located?

A We have indicated on this map the location of

the well fields of Pinellas County in red. The two that

are owned and operated by Pinellas County is the one

indicated as the East Lake Road Well Field, and the

Eldrige Wild Well Field.

The East Lake Road Well Field is within the

confines of Pinellas C6unty. The Eldridge Wild Well Field

is partly in Pinellas County and partly in Hillsborough

County, up near the Pasco County line.

Q Now, is that the only place that we get water

supply from, or are there other well fields?

A Under-a contract with the West Coast Regional

Water Supply Authority, we purchase water from well fields

that are operated, presently operated or that are being

developed by the West Coast Regional Water Supply Authority.


WIeaba aOag OFFICIAL COURT REPORTERS
263 PINELLAS COUNTY BUILOIN
ISO FIFTH STREET NORTH
ST. PCTEREsURG. FLORIDA 33701


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1 Q And which two are those, f yorn could sbi tw the

S2 Hearing Officer?

3 A Again, shown in red, the Cypress Creek Well Field,

4 which is presently being operated by the West Coast Regional

5 Water Supply Authority, and the Cross Bar :Ranch Well Field,

6 which is presently being developed by the Westf Coast

7 Regional Water Supply Authority.

8 Q Now, as far as each of those well fields are

9. concerned, what is the acreage of each one of them?

10 A Could I refer -- ?

11 Q Either that, or you have it on the map there.

12 A Okay. We have 8,060 acres in Cross Bar, in the

13 Cross Bar. In the Cypress Creek, there's 4,895 acres.

14 In the Eldridge-Wilde Field there's 1,929 acres- And in

15 the East Lake Road Well Field there's 5,861 acres.

16 Q Now, how does this water at those well fields

17 get down to Pinellas County?

18 A All right. At the present time, there's an

19 84-inch and a 66-inch"main which has been indicated

20 here lightly coming from the Cypress Creek Well Field to

21 the vicinity of the Eldridge-Wilde Well Field. Pinellas

22 County, through its distribution system, has constructed

23 a 60-inch and a 48-inch to lead to the south, and a 36-inch

24 to go to the west, and then to the south along U.S. 19.

O 25 Q All right, sir. Now, is Pinellas County subject


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to the regulation by the Southwest Florida Water Management

District concerning these well fields which you have just

indicated to the Hearing Officer?

A Yes.

Q That is within Swiftmud's district?

A Yes.

Q Now, is Pinellas County presently being subjected

to the application of the Water Crop Rule known as Rule

16J-2.11(3)?

A Yes.

Q And how is that?

A In the consumptive use permit which was filed

jointly by the Authority and Pinellas County, the Pasco

County has requested to intervene into that particular

hearing on that consumptive use. One of the points that

they are questioning is whether the water crop concept

will be met in the granting of the additional permit for

the Cross Bar Ranch Well Field.

Q You indicated that Pinellas County and the Water

Authority are co-applicants at the Cross Bar Ranch?

A Yes.

MR. ALLEN: Madam Hearing Officer, would you

mind marking this for identification as Petitioner

Pinellas County's Exhibit Number 2.

(Petitioner Pinellas County's Exhibit Number 2


lanaba" & E anOaFoICIAL COURr REPORTERS
23 PINELLAS COUNTY BUILDING
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marked for identification.)

-iMR. WENDEL: For iden+t i~ tion.

MR. ALLEN: Yes.

For the record, -this is -he petition or

the amended petition of Pasco County to intervene as

a party in the West Coast Consaiptive Use Cross Bar

Permit.

.BY MR. ALLEN:

Q Let me hand you, Mr. Tinney, Petitioner Pinellas

County's Exhibit Number 2 for identification, and ask you

if you can identify that document.

MR. BLAIN: Madam Hearing Officer, we have no

objection to this exhibit being offered into evidence,

but Mr. Finney is not in a position to identify a copy

of that. We don't object to it. We'll stipulate

to this being introduced into evidence as a copy of a

pleading presently pending in the consumptive use

permit proceeding before Southwest Florida Water

Management District.

MR. ALLEN: Could we make that Number 2, and we'll

offer that other one as Number 1, to keep the numbers

straight.

THE HEARING OFFICER: Exhibit 2 is received.

(Whereupon Petitioner Pinellas County's Exhibit 2

for identification was marked and received in evidence


OFFICIAL COURT REPORTERS
Xa3 PStMLLAS COUMTV BUtLOINo
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as Petitioner Pinellas County's Exhibit Number 2.)

THE HEARING OFFICER: Are you offering Exhibit 1

into evidence at this time?

MR. ALLEN: Not yet, ma'am. I think we'll ask

him more questions to qualify that, and we'll be

offering it at a later time.

BY-MR. ALLEN:

Q All right, sir. Now, you indicated that Pasco

had intervened into the proceeding. In what respect is the

subject of the Water Crop Rule, which is 16J-2.11(3), being

advocated by Pasco County in these proceedings?

MR. BLAIN: Now, we object to that question. The

document speaks' for itself. It sets out all of Pasco

County's reasoning. Mr. Finney has not been qualified

as an attorney to give an opinion as to what --

THE HEARING OFFICER: The objection is sustained.

BY MR. ALLEN:

Q Mr. Finney, how else is Pinellas County being

affected by the Water Crop Rule?

A Would you rephrase that, or re-ask that one,

please?

Q How else is Pinellas County having Rule 16J-2.11(3)

applied to it?

A We, in the consumptive use permit for the East

Lake Road Well Field, the Pinellas County has leased some


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1 fifty-eight hundred acres of land there which is snder its

S2 control. Zi the granting of the East Lake Road Well Field,

3 the consumptive use permit requires that Pinellas County

4 attested that it did have that land under its control.

5 Q .s the water crop theory being applied to Pinellas

6 County at Fast Lake?

7 `; BLAIN: We object to that question. Mr.

8 Finney has not been qualified as competent to testify

9 as to what happened. He hasn't testified when this

10' permit was granted. It is an old permit. Mr. Finney

11 has only been with Pinellas County since August.

12 MR. ALLEN: Well, the permit is still in existence

13 If it is being applied now, or back then, he can

14 certainly testify as to whether it is being applied

15 to us now.

16 MR. BLAIN: If the permit -- if you want to put

17 the permit in evidence, then offer it.

18 MR. ALLEN: I don't.

19 MR. BLAIN: We have no objection t6 putting the

)20 permit in.

21 MR. ALLEN: I don't think you can run my case,

22 to tell me what I can and cannot do. I think that

23 we're entitled to ask this witness some legitimate

24 questions about whether or not at the present time the

25 water crop theory is being applied to us at East Lake


aKUUaaa kLittuabtg OFFICIAL COURT REPORTERS
23 PIMtLu AS CoUNTY BSULOmIN
10S PFTH STa~CE NORTH
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Road Well Field, and I don't think that these

requirements Mr. Blain keeps bringing up are relevant.

MR. BLAIN: We submit to the Hearing Officer that

there is not one word relating to this subject in the

permit that was granted to East Lake Road, on East

Lake Road Well Field.

MR. ALLEN: Well, that is a matter of his proof,

is it not?

THE HEARING OFFICER: I think the objection,

the groundsfor the objection could be brought out

better on Cross-examination.

I'll allow you to answer the question, if

you remember what it is.

BY THE WITNESS:

A The East Lake Road consumptive use permit is

in effect at this time.

MR. ALLEN: I don't think that was the question.

THE WITNESS: Oh, all right.

BY MR. ALLEN:

Q I think the question is, is whether or not the

water crop theory is being applied to Pinellas County's

East Lake Road Well Field.

A From my reading of the consumptive use permit,

I would say yes, it is.

Q Now, what is the permitted amount of use of water


laCmb"IClagU% aOPPICIAL COURW REPORTERS
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0SO FIrrH STREET NORTH
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1 withdrawal at the Pinellas County's East Lake Road Well

2 Field?

3 A It's an average of three million gallons a day,

4 and a max of five million gallons a day.

5 Q Now, sir, since you have become Water Director,

6 have you become sufficiently familiar with the hydrology

7 in that particular well field?

8 A Yes.

9 Q And can you tell me whether or not, in your

10 opinion, there can be safely withdrawn from that well field

11 more than the water crop on that area?

12 A With additional wells that have been constructed,

13 and with the testing of this, it appears that there could

14 be -

15 MR. FIGURSKI: We would object to that question,

16 based on the fact he's not been qualified as an expert

17 in hydrology.

18 MR. ALLEN: Water, the water production and supply

19 involves that, also, and we can go intt that. These

are matters that everybody here knows, and I really

21 tell you the truth, if we're going to be worried about

that, I have testimony here from Mr. Feaster that the

23
water crop theory, if we want to read it into

24 evidence, is being applied at East Lake Road Well Field.

f 25 I don't know why there's such a great mystery about all


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.81


1 of these proceedings. And Mr. Finney has testified

S2 that he has obtained water from the production of it,

3 all the way through the supply of it, and that includes

4 that.

5 MR. WENDEL: It is one thing to have that

6 expertise, but another to know what the hydrology of

7 the terrain is, concerning the East Lake Road Well

8 Field. That is a totally different area of expertise,

9 and he has no predicate for it, no foundation for it

10 in the record.

11 THE HEARING OFFICER: The question you asked him,

12 Mr. Allen, I believe., was could more water safely be

13 withdrawn. What do you mean by "safely"?

14 MR. ALLEN: Well, of course, without harming the

15 resource. That is a hydrologic term that we keep

16 using, and I'm sorry for not defining it for you before

17 we used it.

18 THE HEARING OFFICER: I will allow the witness to

19 answer the question,

20 BY THE WITNESS:

21 A Yes.
J
22 BY MR. ALLEN:

23 Q And can you tell me whether or.not such wells are

24 actually in place and have been paid for by Pinellas County?

25 A A certain number of wells have been constructed,


&I Obag F FIaIAL COURT REPORTERS
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89


1 yes.

S2 .R. -ALLEN: Would you be kind enough to mark this

3 2s Petitioner's Exhibit Number 3, please.

4 Pestitioner Pinellas County's Exhibit Number 3

5 Ja~Lked for identification.)

4 MR. ALLEN: Mr. Blain and everybody, this is the

7 consumptive use permit application for the Cross Bar

8 Ranch. We would offer this into evidence as Petitioner

9 Pinellas County's Exhibit Number 3.

10 ZTHE HEARING OFFICER: Any objection?

11 MR. -BLAIN: No objection.

12 -THE HEARING OFFICER: Exhibit 3 is received into

13 evidence.

S14 (Whereupon Petitioner Pinellas County's Exhibit

15 Ma ber 3 for identification was marked and received

16 in evidence as Petitioner Pinellas County's Exhibit

IT Number 3.)

18 BY MR. ALLEN:

19 Q Mr. Finney, concerning this particular application,

e20 can you tell me what Pinellas County is presently permitted

21 at, at the Cross'Bar Ranch?
J
22 A An average of 15 million gallons a day, and a-

'3 maximum of 20 million gallons per day.

24 Q And the application requests what?

25 A That it be increased to a withdrawal of 30 million


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per day average, and a max of 45 million gallons per day.

Q And is that request in excess of the Water Crop

Rule?

A Yes.

Q And those proceedings are presently pending before

the Southwest Florida Water Management District?

A Yes.

MR. BLAIN: Excuse me. But rather than get off

on a tangent on some misinformation, Mr. Allen, are

you asking the questions of Mr. Finney as to what

rights Pinellas County has per se, or what rights the

actual holder of the Cross Bar permit has, Pinellas

County being a beneficial holder, rather than the

permit being issued in their name directly.

MR. ALLEN: Well, I don't know about that, Mr.

Blain. We were co-applicants on the first permit,

and--

MR. BLAIN: I think that's incorrect, Mr. Allen.

When the first permit was issued, there were two

permits issued. One was for ground water use, for

irrigation purposes, which has nothing to do with the

question you have asked. The 15/20 was issued to

West Coast Regional. Now, we've got no objection to

your asking him about that, but it is not issued in

the name of Pinellas County. Pinellas County does not










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-hold that permit.

-JBY MR. ALLEN:

Q Mr. Finney, can you tell me who is entitled to

-.a-ll.of the water produced at the Cross Bar Ranch?

A Under contractual agreement we have with the

--West Coast Regional Water Supply Authority, we could take

Small. the water from the Cross Bar Ranch.

Q And who is "we"?

A Pinellas County Water System.

Q Now, can you tell me why Pinellas County is

,applying for additional water supplies at the Cross Bar

- Ranch?

A In the operation of a water utility, it is

_necessary to plan ahead for obtaining the water that is

-necessary some years in advance. In the design of a

.water facility, depending on the length of time which might

-be involved to develop the source of water, it would not be

-unrealistic for a source to be planned as much as -- oh,

-fifteen to twenty years in advance, with the continuing

-regulations that come in to being, with the time that is

-involved from the time you file the application until the

time you are granted the permit to withdraw, and be a

.sufficient time.

In Pinellas County, Pinellas County alone, without

any consideration to any of the other people who might


Ianbag O& Ilaba CM.COiURT REPORTERS
2I3 PIc6LLAS COUNTY BUILDoNG
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purchase water from the Water Authority, feels that the

consumptive use permit has to be extended at this particular

time so that there can be planning to know that that water

is available and is not subject to being issued at a later

date.

You cannot operate a water system under a crisis

condition of obtaining a bucket of water as you need that

bucket of water. You have got to plan when that bucket of

water is going to be available, or you can't operate it.

So it was with this thought, that need has to be

known at this time, if there is going to be any planning

for the future of the use of the water from the Cross Bar.

If the permit was denied, and we were not able to obtain

additional water from that, then the planning for the

water system, the Pinellas County Water System, the planning

in portions of Pasco County, where we are suppliers, would

have to stop until such time, you know, that, you know, that

water is going to be available for you, not, you know, you

just can't operate under crisis condition and get a permit

to start pumping the water after you run out of water.

MR. BLAIN: Could we have the question read back?

MR. ALLEN: My question was --

MR. BLAIN: Excuse me, Mr. Allen. I'd like it

read from the record.

(Question read.)


aRahg $& KtnabagOFFICIAL Cwn REPORTERS
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BY MR. ALLEN:

Q Now, how much water does Pinellas County presently

use?

A On an average, at this particular time, the

Pinellas County at this particular time is using an average

of about 45 million gallons a day. This is at this

particular time.

Q And how about in peak use?

A We have projections that have been made by the

engineers for the West Coast Regional Water Supply

Authority, who have projected the average in peak usage,

that Pinellas County will be using --

MR. BLAIN: Excuse me. Object as not being

responsive to the question.

THE HEARING OFFICER: Sustained.

BY MR. ALLEN:

Q What is the peak use, Mr. Finney?

A Approximately, it is projected it will be about

90 million gallons in a year, in 1980.

MR. BLAIN: Excuse me, that's what they are using

on the peak use now, not what it will.be.

MR. ALLEN: That's the question.

BY MR. ALLEN:

Q What is the peak use at the present time?

A The peak, the peak days at the present time,


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1 within the last few months, would be approaching about

6 2 65 million gallons a day.

3 Q Now, can you tell me whether or not, in the past,

4 or in the recent past, there has been a crisis in the

5 Pinellas County Water System?

6 A Yes.

7 Q And what is that crisis?

8 A In April of last year, the Pinellas County Board

9 of County Commissioners were required to adopt a --

10 MR. BLAIN: Objection. Mr. Finney testified he

11 came to work in August of 1979, which is a time and

12 date subsequent to the date he's testifying about.

13 MR. ALLEN: The Water Director can testify

14 concerning his basic knowledge.

15 MR. BLAIN: Not what Pinellas County was required

16 or not required to do.

17 MR. ALLEN: I disagree with that.

18 THE HEARING OFFICER: I'll sustain the objection.

19 BY MR. ALLEN:

20 Q Mr. Finney, tell me, what are the requirements

21 in the future for Pinellas County toward water supply?

22 A The requirements --

23 THE HEARING OFFICER: Excuse me. Can I ask for a

24 clarification here?

C K MR. ALLEN: Sure.


Icba & u OFFICIAL COURT REPORTERS
203 PNELLAS COUNTY BUILDING
150 FIFTH STREET NORTH
ST. PrrERBeURe. FLORIDA 33701







.1 THE HEARING OFFICER: You.used the term "Pinellas

2 County." Are you speaking in reference to the

3 geographical limits of Pinellas County? Or are you

4 speaking in reference to the whole Pinellas County

5 Water System?

6 MR. ALLEN: The whole water system which Mr.

7 Finney --

8 THE HEARING OFFICER: Which serves some other

9 areas, also?

10 MR. ALLEN: Yes, ma'am, as he indicated, it also

11 serves a part of Pasco County.

12 THE HEARING OFFICER: Right. You are speaking of

13 the system.

14 MR. ALLEN: The whole system, yes, ma'am.

15 THE HEARING OFFICER: Okay. Thank you.

16 MR. ALLEN: Thank you.

17 ,THE HEARING OFFICER: Excuse me for interrupting.

18 BY MR. ALLEN:

19 Q What are the projected needs of the Pinellas Count

20 Water System?

21 A The projected needs will be that that will be an

22 increase in the source of water required in the years as

23 they go forward.

24 Q All right. And can you tell me whether or not any

S25 additional water supplies in these projections are needed


OFFICIAL CObaRT REPORTERS
263 PINNELLA COUNTY BUILDING
tSO FIFTH STREET NORTH
ST. PETERSBURG. FLORIDA 33701




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