Title: Rulings On Exceptions To Recommended Order Filed By WCRWSA
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Title: Rulings On Exceptions To Recommended Order Filed By WCRWSA
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Language: English
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - Rulings On Exceptions To Recommended Order Filed By WCRWSA (JDV Box 108)
General Note: Box 16, Folder 11 ( SWFWMD Permits and Final Order - 1997-1998 ), Item 7
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004013
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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RULINGS ON EXCEPTIONS TO RECOMMENDED ORDER


EXCEPTIONS FILED BY WEST COAST REGIONAL WATER SUPPLY AUTHORITY

1. Exceptions to Findings of Fact Nos. 137, 138, 139, 141, 143 and 263. Rejected.

Findings of Fact Nos. 137, 138, 139 and 263 are supported by competent substantial evidence in

the record, including the following: Tr-Vol. 21, p. 46, 112-113 (M. Brown); Vol. 19A, p. 117-

118 (M. Stewart); Vol. 26A, p. 75, 85-86, Vol. 26B, p. 101-103 (J. Emery); Vol. 18A, p. 86-107

(M. Hancock); Vol. 22B, p. 68-69 (L. Bartos); Vol. 25, p. 57-59 (M. Dennis); Vol. 11B, p. 7-9,

12-13, 16-22, 26, 32, 33-34 (E. Copeland); Vol. 13B, p. 92-94, 103-104 (K. Stage); Vol. 15A, p.

64, 129, 131-132, 158, 171, Vol. 16A, p. 85 (S. Denton). Finding of Fact No. 141 is supported

by competent substantial evidence in the record, including the following: Tr-Vol. 26A, p. 75, 85-

86. Vol. 26B, p. 101-103 (J. Emery); Vol. 18A, p. 86-107 (M. Hancock); Vol. 11B, p. 7-9, 12-13,

16-22. 26 (E. Copeland). Finding of Fact No. 143 is supported by competent substantial

evidence in the record, including the following: Tr-Vol. 18A, p. 97-107 (M. Hancock); Vol.

11B, p. 7-9, 12-13, 16-22. 26 (E. Copeland).

2. Exceptions to Findings of Fact Nos. 135, 265 and 267. Rejected. Findings of

Fact Nos. 135 and 265 are supported by competent substantial evidence in the record, including

the following: Tr-Vol. 26B, p. 86-92, 107-109, Vol. 28A, p. 111-112 (J. Emery); Vol. 22A, p.

87-95 (L. Bartos); Vol. 21, p. 78, 112-113, Vol. 23B, p. 82-83 (M. Brown); Vol. 18A, p. 123-127

(M. Hancock); Vol. 14A. p. 74 (B. Ormiston); Exhibit Nos. 596 (p. 3-68), 598A-1 CHECK

WHETHER ADMITTED Finding of Fact No. 267 is supported by competent substantial

evidence in the record, including the following: Tr-Vol. 21, p. 112, Vol. 23B, p. 82-83 (M.

Brown).










3. Exception to Finding of Fact No. 98. Rejected. This Finding of Fact is supported

by competent substantial evidence in the record, including the following: Tr-Vol. 17B, p. 42-46,

49-50,.54-67,73.-106, Vol. 18A, p. 72-80, 127-128 (M. Hancock); Vol. 11A, p. 6-9.(S. ....

Upchurch); Vol. 16B, p. 39-41, 63, 76-88, 92-93, 120, Vol. 17A, p. 29-30 (J. Parker); Exhibit

Nos. 157-A, 157-B, 151-B.

4. Exception to Finding of Fact No. 84. Rejected. The Authority apparently does

not challenge the accuracy of what the ALJ found, it just believes that the ALJ should have made

some additional qualifying finding. The ALJ's finding is supported by competent substantial

evidence in the record, including the following: Tr-Vol. 17B, p. 42-43 (M. Hancock); Vol. 16B,

p. 84 (J. Parker). There is no need for the additional finding which the Authority seeks.

5. Exception to Findings of Fact Nos. 93 and 94. Rejected. That portion of Finding

of Fact No. 93 which relates to "area...wetlands" is supported by competent substantial evidence

in the record, including the following: Tr-Vol. 21, p. 43-49, 77-78, 112-113, 115, Vol. 23B, p.

82 (M. Brown); Vol. 26A, p. 74-76, Vol. 28A, p. 105-106 (J. Emery); Vol. 22A, p. 78-79, 124

(L. Bartos): Vol. 24B, p. 54 (M. Dennis); Vol. 16B, p. 85-88, Vol. 17A, p. 29-30 (J. Parker);

Exhibit No. 151-B. Wetlands don't have names, thus, the generalized nature of the ALJ's finding

is appropriate. That portion of Findings of Fact Nos. 93 and 94 which relates to "area...lakes" is

supported by competent substantial evidence. There was much evidence presented regarding the

effects of the wellfield withdrawals on specific lakes. Cosme-Odessa has had impacts on Horse

Lake, Lake Rogers, Lake Raleigh, Lake Church and Lake Amelia (see Tr-Vol. 26A, p. 99-101,

Vol. 26B, p. 12-13, 35-36, 44-45, 77-88, 90-92, 104-110, Vol. 28A, p. 95, 106, 111-112 (J.

Emery); Vol. 16A, p. 28 (S. Denton); Exhibit No. A-110; Resp. Exhibit No. 596D (p. 3-68 -





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3-69)). Section 21 has had impacts on Starvation Lake, Lake Jackson, Lake Crum, Lake

Simmons and Lake Oakley (see Tr-Vol. 26B, p. 36-37, 96, 97-98, 100-101, 109-110, Vol. 28A,

p. 95, 106, 111-112, Vol. 26A, p. 94-95, .101(J. Emery); Vol. 21, p. 87-88 (M. Brown); Vol._ _

16A, p. 28 (S. Denton); Exhibit No. A- 10; Resp. Exhibit No. 596D (p. 3-68 3-69)). South

Pasco has had impacts on Camp Lake, Lake Ruth, Long Sun Lake and Mary Lou Lake (see Tr-

Vol. 22B, p. 28, 54-55, Vol. 22A, p. 59 (L. Bartos)). For the ALJ to take this evidence regarding

several specific lakes and make a generalized finding that "area lakes" have been impacted was

entirely appropriate. See also Vol. 21, p. 78 (M. Brown).

6. Exception to Finding of Fact No. 103. Rejected. The Authority does not appear

to be arguing that there is no evidence to support this proposition. Rather, they appear to be

arguing that the evidence was not competent or substantial. The ALJ's finding is based upon the

testimony of See Tr-Vol. This evidence is both competent and substantial.

7. Exception to Findings of Fact Nos. 163 and 166. Rejected. The Authority

quarrels with the ALJ's use of the word "current" in describing the impacts caused by water

withdrawals. It is reasonable to understand the ALJ's use of the word "current" to mean that all

of the named impacts are present currently. The Authority cannot contend that the identified

adverse impacts (e.g., extensive oxidation and subsidence of soils, substantial cypress tree

decline, etc.) have remediated themselves. In these findings.the ALJ did not find when these

impacts began. Elsewhere, he found that the impacts began shortly after the onset of water

withdrawals (see Finding of Fact No. 125), and he also found that the impacts are ongoing even

today (see Findings of Fact Nos. 175 and 176). The ALJ's use of the word "current" to describe

the impacts was entirely appropriate and consistent with his other findings.









8. Exception to Finding of Fact No. 164. Rejected. The finding by the ALJ that

impacts caused by Section 21 extend at least one mile from the wellfield is supported by a report

prepared by the Authority's own consultant, Brian Ormiston. See Exhibit.No. A-l 10. .,The

finding is otherwise supported by competent substantial evidence. See Tr-Vol. 26B, p. 36-37,

88-90, 96, 97-98, 100-101, 109, Vol. 28A, p. 95, 106, 111-112, Vol. 26A, p. 94-95, 101 (J.

Emery); Vol. 18A, p. 77-78 (M. Hancock); Vol. 21, p. 87-88 (M. Brown); Vol. 13A, p. 74-75, 82

(P. NeSmith); Vol. 13B, p. 113-114 (K. Stage); Exhibit No. A-1 10; Resp. Exhibit Nos. 596D (p.

3-68 3-69) and 176.

9. Exception to Finding of Fact No. 167. Rejected. The Authority argues that

because lake levels have allegedly risen "since the return to normal rainfall after 1994," therefore,

the ALJ's finding that Cosme-Odessa has caused lake impacts is not based upon competent

substantial evidence. The Authority's argument is without merit. Just because higher rainfall has

caused higher lake levels does not mean that wellfield pumping has not caused impacts to lake

levels. That Cosme-Odessa has caused impacts to the named lakes is supported by competent

substantial evidence in the record, including the following: Tr-Vol. 26A, p. 99-101, Vol. 26B, p.

12-14, 26, 35-36, 44-45, 77-88, 90-92, 104-110, Vol. 28A, p. 95, 106, 111-112 (J. Emery); Vol.

18A, p. 75-76 (M. Hancock); Vol. 9A, p. 15 (R. Knight); Vol. 13A, p. 74-75, 78-79 (P.

NeSmith); Vol. 14A, p. 74 (B. Ormiston); Exhibit No. A-110; Resp. Exhibit No. 596D (p. 3-68 -

3-69).

10. Exception to Finding of Fact No. 237. Rejected. Clearly, the ALJ refused to

accept the Petitioners' argument regarding the need for quantities to be included within the

permits for "rotational capacity." The ALJ believed that "rotational capacity" could be achieved


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by way of periodic authorizations from the District to exceed permitted quantities at one

wellfield so long as the increase in withdrawals at that wellfield was offset with a commensurate

decrease at another wellfield. See Recommendation, paragraph. "b." The.ALJ's resolution ofthe .-...- -.

"rotational capacity" issue is reasonable. The ALJ was under no obligation to accept the

Authority's argument regarding the "need" for rotational capacity.

11. Exception to Finding of Fact No. 231. Rejected. This finding of fact is supported

by competent substantial evidence in the record, including the following: Tr-Vol. 16B, p. 66-67

(J. Parker); and Resp. Exhibit No. 196-A. Additionally, the Governing Board notes that Pinellas

moved to correct the ALJ's alleged "error" a few days after the recommended order was entered.

On June 9, 1997, the ALJ entered an order denying the motion.

12. Exceptions to Findings of Fact Nos. 248 and 249. Rejected. These findings of

fact are supported by competent substantial evidence in the record, including the following: Tr-

Vol. 19A, p. 64-65, 115-116 (M. Stewart); Vol. 8A, p. 53-54, 65 (D. Wiley); Vol. 9B, p. 12-13

(J. Bays).

13. Exceptions to Findings of Fact Nos. 264 and 268. Rejected. The ALJ was

unpersuaded that the WAR/CH2M Hill monitoring projects appropriately represented the current

state of the lakes and wetlands in the area or that they provide a basis for reliable long term

analysis. The Authority's argument to the contrary is that the WAR/CH2M Hill projects are more

extensive than any project undertaken by the District or anyone else. The ALJ didn't find that the

District's or anyone else's monitoring was more extensive, so the Authority's argument misses the

point. The ALJ was clearly unimpressed with the WAR/CH2M Hill projects. His finding is

based upon competent substantial evidence in the record, including the following: Tr-Vol. 21, p.









110-111 (M. Brown); Vol. 8B, p. 18-19 (R. Knight). LL- ..

1. Exception to Conclusion of Law No. 309. Rejected. The Authority's argument is

a non sequitur.,. Just because there is a need for rotational capacity (a proposition which both.th.e ...

ALJ and the District do not accept), does not mean that the criteria are met as to withdrawals in

excess of the current actual daily withdrawals. A mere need for water does not establish

compliance with the permitting criteria in Section 373.223(1), F.S., and Rule 40D-2.301(1),

F.A.C. In any event, the ALJ allowed for "rotational capacity" in paragraph "b" of the

Recommendation section of his order. There is competent substantial evidence in the record for

the proposition that pumping at quantities greater than the current amounts would result in worse

environmental impacts and, thus, violation of the conditions for issuance of permits. See Tr-Vol.

26A. p. 55-56, 58-60. 77-79. Vol. 27A, p. 46-47, Vol. 27B, p. 64-65. Vol. 28A, p. 110-111 (J.

Emery).

2. Exceptions to Conclusions of Law Nos. 312 and 313. Rejected. These

conclusions of law by the ALJ state that the evidence fails to establish that the withdrawal of

water in excess of the quantities currently being pumped will not cause quantity or quality

changes which adversely impact water resources or adverse environmental impacts. The findings

of fact cited by the Authority with regard to NWHRWF merely find that that wellfield has not

caused adverse environmental impacts based on current pumping. This wellfield has been

pumping at its maximum permitted capacity. See Finding of Fact No. 32. The ALJ made no

findings which indicated that withdrawals in excess of current actual withdrawals would meet

rule criteria. There is competent substantial evidence that if withdrawals were greater than

"current" quantities, there would be adverse impacts. See Tr-Vol. 26B, p. 130-132, Vol. 27B, p.









64-65 (J. Emery). Moreover, since the NWHRWF is pumping at full permitted capacity, and the

Authority is not seeking any increased quantity for that wellfield (see Finding of Fact No. 39),

there is no need.for a conclusion that withdrawals in excess of.quantities currently.being pumped .,..

will not result in violation of one or more rule criteria.

EXCEPTIONS FILED BY THE CITY OF ST. PETERSBURG

1. Exception to Finding of Fact No. 13. Accepted. See rejection of this finding of

fact in the final order.

2. Exception to Finding of Fact No. 44. Accepted. See rejection of this finding of

fact in the final order.

3. Exception to Finding of Fact No. 127. Rejected. This finding of fact is

supported by competent substantial evidence in the record, including the following: Tr-

4. Exception to Finding of Fact No. 263. Rejected. This finding of fact is supported

by competent substantial evidence in the record, including the following: Tr-Vol. 21, p. 46, 112-

113 (M. Brown); Vol. 19A, p. 117-118 (M. Stewart); Vol. 26A, p. 75, 85-86, Vol. 26B, p. 101-

103 (J. Emery), Vol. 18A, p. 86-107 (M. Hancock), Vol. 22B, p. 68-69 (L. Bartos), Vol. 25, p.

57-59 (M. Dennis); Vol. 11B, p. 32, 33-34 (E. Copeland); Vol. 13B, p. 92-94, 103-104 (K.

Stage); Vol. 15A, p. 64, 131-132, Vol. 16A, p. 85 (S. Denton).

5. Exception to Finding of Fact No. 238. Accepted. See the rejection of this finding

of fact in the final order.

6. Exception to Finding of Fact No. 223. Rejected. Nothing in the City's exception

disputes the accuracy of the ALJ's finding. Instead, the City argues that expanding its reuse

system "would involve considerable time and effort." The City's exception is irrelevant to the






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ALJ's finding of fact.

7. Exceptions to Findings of Fact Nos. 233, 234, 239 and 241. Rejected. These

findings of fact are supported by competent substantial evidence in the record, including the

following: Tr-Vol. 26A, p. 55-56, 58-60, 77-79, Vol. 27A, p. 46-47, Vol. 27B, p. 64-65, Vol.

28A, p. 110-111 (J. Emery); Vol. 14A, p. 77 (B. Ormiston).

8. Exception to Finding of Fact No. 161. Rejected. This finding of fact is supported

by competent substantial evidence in the record, including the following: Tr- Vol. 22B, p. 71 (L.

Bartos); Vol. 25, p. 15-16 (M. Dennis); Vol. 13A, p. 53 (P. NeSmith).

9. Exceptions to Findings of Fact Nos. 164 and 167. Rejected. The finding by the

ALJ that impacts caused by Section 21 and Cosme-Odessa extend at least one mile from the

wellfield is supported by a report prepared by a consultant for the Authority, Brian Ormiston.

See Exhibit No. A-l 10. As to Section 21, the finding is otherwise supported by competent

substantial evidence in the record, including the following: Tr-Vol. 26B, p. 36-37, 88-90, 96, 97-

98, 100-101, 109, Vol. 28A, p. 95, 106, 111-112, Vol. 26A, p. 94-95, 101 (J. Emery); Vol. 18A,

p. 77-78 (M. Hancock); Vol. 21, p. 87-88 (M. Brown); Vol. 13A, p. 74-75, 82 (P. NeSmith); Vol.

13B, p. 113-114 (K. Stage); Exhibit No. A-110; Resp. Exhibit Nos. 596D (p. 3-68 3-69) and

176. As to Cosme-Odessa, the finding is otherwise supported by competent substantial evidence

in the record, including the following: Tr-Vol. 26A, p. 99-101, Vol. 26B, p. 12-14, 26, 35-36,

44-45, 77-88, 90-92, 104-110, Vol. 28A, p. 95, 106, 111-112 (J. Emery); Vol. 18A, p. 75-76 (M.

Hancock); Vol. 9A, p. 15 (R. Knight); Vol. 13A, p. 74-75, 78-79 (P. NeSmith); Exhibit No. A-

110; Resp. Exhibit No. 596D (p. 3-69 3-69).

10. Exception to Finding of Fact No. 268. Rejected. The City bases its exception on
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a claimed inconsistency between this finding and Finding of Fact No. 261. A finding that the

WAR/CH2M Hill projects do not provide a basis for reliable long term analysis is not

.inconsistent with a finding that the. WAR/CH2M Hill projects provide more data than has ...........

previously been available or more data than any program utilized by the District. Clearly, the

ALJ was unpersuaded that the WAR/CH2M Hill monitoring projects provide a basis for reliable

long-term analysis. The ALJ's finding is based upon competent substantial evidence in the

record, including the following: Tr-Vol. 21, p. 110-111 (M. Brown); Vol. 8B, p. 18-19 (R.

Knight).

11. Exception to Finding of Fact No. 92. Rejected. The finding that the primary

cause of lowered lake levels is the withdrawal of water at the wellfields is supported by

competent substantial evidence in the record, including the following: Tr-Vol. 21, p. 78, 112-

113 (M. Brown); Vol. 17B, p. 42-46, 49-50, 54-67, 73-106, Vol. 18A, p. 72-81 (M. Hancock);

Vol. 26B, p. 88-90, 109, Vol. 28A, p. 106, 111-112 (J. Emery); Vol. 22A, p. 85-95, 98, 103-104,

Vol. 22B, p. 18, 21, 35, 38, 54-55 (L. Bartos); Exhibit No. A-110; Resp. Exhibit Nos. 596D (p.

3-68 3-69), 176, 177 and 598A. The finding that the primary cause of lowered wetlands water

levels is the withdrawal of water at the wellfields is supported by competent substantial evidence

in the record, including the following: Tr-Vol. 17B, p. 42-46, 49-50, 54-67, 73-106, Vol. 18A, p.

72-81 (M. Hancock); Vol. 21, p. 43-49, 77-78, 112-113, 115, Vol. 23B, p. 82 (M. Brown); Vol.

26A, p. 74-76, Vol. 28A, p. 105-106 (J. Emery); Vol. 22A, p. 78-79, 124 (L. Bartos); Vol. 24B,

p. 54 (M. Dennis); Vol. 16B, p. 85-88, Vol. 17A, p. 29-30 (J. Parker); Exhibit No. 151-B. Since

the ALJ's finding is supported by competent substantial evidence, there is no need to make the

additional finding which the City seeks.









12. Exceptions to Findings of Fact Nos. 128, 130 and 131. Rejected. The finding that

low rainfall is not the primary cause for lowered water levels is supported by competent
Ir- -
substantial evidence in the record, including the following: Vol. 21, p. 112-113 (M. Brown);

Vol. 28A, p. 105-106 (J. Emery); Vol. 14A, p. 74 (B. Ormiston); Vol. 18A, p. 80-81 (M.

Hancock); Resp. Exhibit No. 596D (p. 3-68). The finding that the primary cause of lowered lake

levels is the withdrawal of water at the wellfields is supported by competent substantial evidence

in the record, including the following: Tr-Vol. 21, p. 78, 112-113 (M. Brown); Vol. 17B, p. 42-

46, 49-50, 54-67, 73-106, Vol. 18A, p. 72-80 (M. Hancock); Vol. 26B, p. 88-90, 109, Vol. 28A,

p. 106, 111-112 (J. Emery); Vol. 22A, p. 85-95, 98, 103-104, Vol. 22B, p. 18, 21, 35, 38, 54-55

(L. Bartos); Exhibit No. A-1 10; Resp. Exhibit Nos. 596D (p. 3-68 3-69), 176, 177 and 598A.

The finding that the primary cause of lowered wetlands water levels is the withdrawal of water at

the wellfields is supported by competent substantial evidence in the record, including the

following: Tr-Vol. 17B, p. 42-46, 49-50, 54-67, 73-106, Vol. 18A, p. 72-80 (M. Hancock); Vol.

21, p. 43-49, 77-78, 112-113, 115, Vol. 23B, p. 82 (M. Brown); Vol. 26A. p. 74-76, Vol. 28A, p.

105-106 (J. Emery); Vol. 22A, p. 78-79, 124 (L. Bartos); Vol. 24B, p. 54 (M. Dennis).

13. Exception to Finding of Fact No. 143. Rejected. This finding is supported by

competent substantial evidence in the record, including the following: Tr-Vol. 18A, p. 97-107

(M. Hancock); Vol. 11B, p. 7-9, 12-13, 16-22, 26 (E. Copeland).

14. Exceptions to Findings of Fact Nos. 243, 246 and 248. Rejected. These findings

of fact are supported by competent substantial evidence in the record, including the following:

Tr-Vol. 19A, p. 64-65, 115-11.6 (M. Stewart); Vol. 8A, p. 53-54, 65 (D. Wiley); Vol. 9B, p. 12-

13 (J. Bays); Vol. 1B, p. 95-112 (N. Houmis).





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15. Exception to Finding of Fact No. 247. Rejected. That portion of this finding

which addresses "non-native microscopic organisms" is supported by competent substantial

evidence in the record, including the following: Tr-Vol. 8A, p. 53-54 (D. Wiley) ....... ....

16. Exception to Conclusion of Law No. 302. Rejected. The ALJ's conclusion is

correct. His subsequent conclusions of law (Nos. 303-305) detail the clearly adverse nature of

the impacts which have been caused by the withdrawals from the three City wellfields. As a

matter of law, the Governing Board concludes that adverse impacts are determined by applying

the performance standards in Section 4.2 of the Basis of Review. See Conclusion of Law No.

292. See also Vol. 13B, p. 95-96 (K. Stage); Vol. 14B, p. 103 (S. Denton).

17. Exception to Conclusion of Law No. 303. Rejected. Just because some of

Petitioners' witnesses said they didn't know what was meant by the word "adverse" does not

constrain the ALJ from considering all of the evidence and arriving at his own conclusion that

the subject wellfields have caused adverse environmental impacts. This conclusion is supported

by competent substantial evidence in the record, including the following: Vol. 21, p. 43-49, 77-

78, 115 (M. Brown); Vol. 22A, p. 78-79 (L. Bartos); Vol. 16A, p. 24-25 (S. Denton).

18. Exception to Conclusion of Law No. 304. Rejected. The ALJ clearly considered

and rejected the Petitioners' fallacious proposition that the transformation of wetlands into

uplands is not an adverse environmental impact. There is competent substantial evidence in the

record for what the ALJ concluded, including the following: Tr-Vol. 21, p. 43-49, 77-78, 111-

112. 115 (M. Brown); Vol. 8B, p. 64-65 (R. Knight); Vol. 14A, p. 73-74 (B. Ormiston); Vol.

16A, p. 24-25 (S. Denton). The Governing Board concurs with the ALJ's conclusion.

19. Exception to Conclusion of Law No. 305. Rejected. The City's argument against









. this conclusion of law is without merit. The harms described in this conclusion are clearly

adverse environmental impacts. There is competent substantial evidence in the record for what

.......... .the AL concluded, including the following: .Tr-Vol. 21, p. 43-49, 77-78, 115 (M. Brown). .The.

Governing Board concurs with the ALJ's conclusion.

EXCEPTIONS FILED BY PINELLAS COUNTY

1. Exception to ruling on attorney's fees in preliminary statement. Rejected.

Pinellas cites no authority for the proposition that it was entitled to an evidentiary hearing on the

attorney's fees issue. Regardless, the District's agency actions to abandon the 1-year permits and

to adopt and then later abandon the Environmental Protection Standards were introduced into

evidence (Exhibit Nos. A-45, A-46, A-47, P222, A-48, A-49, A-50, P237 and A-100) and were

the subject of testimony at the formal administrative hearing on the four permits. See Tr- Vol.

6A, p. 67-68 (R. McLean); Vol. 29A, p. 123, 125 (J. Guida). The ALJ obviously heard and

considered this evidence in concluding that the District's changes in position were not interposed

for an improper purpose.

Additionally, many pleadings filed by the District relating to its changes in position show

on their face that the changes in position were not interposed for an improper purpose. See

District's Verified Motion for Continuance of Final Hearing served on November 28, 1995;

Amendment to District's Verified Motion for Continuance of Final Hearing served on December

5, 1995: District's Response to Motions in Limine Filed by Pinellas County, West Coast Regional

Water Supply Authority and City of St. Petersburg served on December 14, 1995; Notice of

Action by District served on December 20, 1995; Joint Response of SWFWMD, Hillsborough

County and Pasco County in Opposition to Pinellas County's Motion for Prehearing Order









Clarifying Burden of Proof, or, in the Alternative, Motion for Relinquishment of Jurisdiction

served on July 3, 1996; Joint Response of SWFWMD, Hillsborough County and Pasco County in
Opposition to the City of St. Petersburg's Motion for Summary Recommended Order (with

attached affidavit) served on July 8, 1996; Joint Reply of SWFWMD, Hillsborough County and

Pasco County to Response of Pinellas County and City of St. Petersburg in Opposition to

Respondents' Alternative Motion for Relinquishment of Jurisdiction served on July 11, 1996;

District's Motion in the Alternative to Amend its Official Position or to Relinquish Jurisdiction

served on July 12, 1996; and District's Memorandum in Opposition to Pinellas County's Motion

to Tax Fees and Costs served on July 22, 1996. Of particular note is the fact that the District's

motion for continuance of the originally scheduled hearing for the purpose of changing the

proposed agency action from the 1-year permits to the 10-year permits with Environmental

Protection Standards, was a verified motion. Additionally, the Joint Response of SWFWMD,
I-
Hillsborough County and Pasco County in Opposition to St. Petersburg's Motion for

Summary Recommended Order served on July 8, 1996, was supported by an affidavit.

Moreover, administrative proceedings are de novo in nature, therefore, an agency is

entitled to change its position. See Section 120.57(1)(i), F.S. (Supp. 1996) and Order

Relinquishing Jurisdiction and Denying Motion for Summary Recommended Order Based on

Confession of Error entered by the ALJ on July 11, 1996.

2. Exception to Finding of Fact No. 44. Rejected. The fact that the Authority

originally sought a 20 year permit for the NWHRWF does not constitute evidence supporting an

extension of the District's standard 10 year permit term.

3. Exception to Finding of Fact No. 137. Rejected. This finding is supported by






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competent substantial evidence in the record, including the following: Tr-Vol. 21, p. 46, 112-

113 (M. Brown); Vol. 19A, p. 117-118 (M. Stewart); Vol. 26A, p. 75, 85-86, Vol. 26B, p. 101-

103 (J. Emery); Vol. 18A, p. 86-107 (M. Hancock); Yol. 22B, p..68-69 (L. Bartos);.Vol. 25, p........, ,

57-59 (M. Dennis); Vol. 11B, p. 7-9, 12-13, 16-22, 26 (E. Copeland); Vol. 13B, p. 92-94, 103-

104 (K. Stage); Vol. 15A, p. 64, 129, 131-132, 158, 171, Vol. 16A, p. 85 (S. Denton).

4. Exception to Finding of Fact No. 172. Rejected. This finding is supported by

competent substantial evidence in the record, including the following: Tr- Vol. 28B, p. 81-82 (J.

Guida). The Governing Board also concludes that the ALJ was correct as a matter of law.

Section 373.223, F.S., applies to all water use permit applications, including renewals of permits

for water uses which began prior to the District's water use regulation program. Tr- Vol. 28B, p.

81-82 (J. Guida).

5. Exception to Finding of Fact No. 231. Rejected. The finding that combined

actual average daily withdrawals at the four wellfields total about 40 mgd is supported by

competent substantial evidence in the record, including the following: Tr-Vol. 16B, p. 66-67 (J.

Parker); Resp. Exhibit No. 196-A. Additionally, the Governing Board notes that Pinellas moved

to correct the ALJ's alleged "error" a few days after the recommended order was entered. On

June 9, 1997, the ALJ entered an order denying the motion. With regard to maximum permitted

capacity. Pinellas correctly points out that this totals 49.9 mgd. However, stating that 49.9 mgd

is "about 49 mgd," as the ALJ did, is not inaccurate.

6. Exception to Finding of Fact No. 232. Rejected. The ALJ's description of the

maximum withdrawal level as 49 mgd is reasonable. See treatment of Exception No. 5 above.

The finding by the ALJ that at the maximum withdrawal levels set forth in the current






t. L. .. LA ;


permits, the Petitioners do not comply with the criteria for issuance of permits, merely

summarizes his later findings in Nos. 240, 241 and 242 that adverse impacts to wetlands and

lakes, and their associated fauna, will occur if pumping is greater than what is occurring .

currently. The proposition that environmental impacts will worsen if withdrawals increase from

current quantities to the maximum withdrawals set forth in the current permits is supported by

competent substantial evidence in the record, including the following: Tr-Vol. 26A, p. 55-56,

58-60, 77-79, Vol. 27A, p. 46-47, Vol. 27B, p. 64-65, Vol. 28A, p. 110-111 (J. Emery). The ALJ

found that this would result in the violation of three conditions for issuance of permits, Rule

40D-2.301(l)(b), (c) & (d), F.A.C. See Findings of Fact Nos. 240, 241 and 242.

Contrary to Pinellas' argument in its exception, the ALJ has not improperly required

additional proof from the Petitioners. Proving up entitlement to a permit is the applicant's

burden. See Conclusion of Law No. 288. Noncompliance with three conditions for issuance of

permits cannot be overlooked, as Pinellas seems to suggest. The ALJ's findings of compliance

with the reasonable-beneficial use prong (Finding of Fact No. 179) and the public interest prong

(Finding of Fact No. 182) of the three-prong test must be understood to pertain to the Applicants'

actual current rates of withdrawal. The ALJ was clear throughout his order that the maximum

rates of withdrawal allowed under the current permits did not meet the pertinent criteria (see

Conclusion of Law No. 309). Thus, the ALJ correctly found that pumping at the maximum

withdrawal levels set forth in the current permits would not comply with the criteria for issuance

of permits.

7. Exception to Finding of Fact No. 233. Accepted. See the partial rejection of this

finding of fact regarding NWHRWF in the final order.





: a

; 1- -*.- i''' liJ

8. Exception to Finding of Fact No. 234. Rejected. This finding of fact is supported

by competent substantial in the record, including the following: Tr- Vol. 26A, p. 55-56, 58-60,

77-79, Vol. 27A, p. 46-47, Vol. 27B, p. 64-65, Vol. 28A, p. 110-111 (J. Emery); Vol. 14A, p. 77

(B. Ormiston).

9. Exception to Finding of Fact No. 237. Rejected. Clearly, the ALJ refused to

accept the Petitioners' argument regarding the need for quantities to be included within the

permits for "rotational capacity." The ALJ believed that "rotational capacity" could be achieved

by way of periodic authorizations from the District to exceed permitted quantities at one

wellfield so long as the increase in withdrawals at that wellfield was offset with a commensurate

decrease at another wellfield. See Recommendation, paragraph "b." The ALJ's resolution of the

"rotational capacity" issue is reasonable. The ALJ was under no obligation to accept the

Petitioners' argument regarding the "need" for rotational capacity.

10. Exception to Finding of Fact No. 238. Accepted. See the rejection of this finding

of fact in the final order.

11. Exception to Finding of Fact No. 239. Accepted and rejected in part. This

finding of fact is rejected as it relates to NWHRWF. See final order. This finding of fact is

accepted, and Pinellas' exception is rejected, with regard to the three City wellfields inasmuch as

it is supported by competent substantial evidence in the record, including the following: Tr-Vol.

26A, p. 55-56, 58-60, 77-79, Vol. 27A, p. 46-47, Vol. 27B, p. 64-65, Vol. 28A, p. 110-111 (J.

Emery); Vol. 14A, p. 77 (B. Ormiston).

12. Exception to Finding of Fact No. 240. Rejected. With regard to NWHRWF, the

ALJ's other findings cited by Pinellas only stand for the proposition that pumping at "current









quantities" from said wellfield meets the permitting criteria. In the subject finding of fact,

however, the ALJ found that a criterion was not met if withdrawals were "in excess of the

quantities currently being pumped." Therefore, there is no inconsistency between the ALJ's

findings. This finding of fact is supported by competent substantial evidence in the record,

including the following: Tr-Vol. 26B, p. 130-132 (J. Emery); Vol, 22B, p. 73-74 (L. Bartos);

Vol. 14A, p. 77 (B. Ormiston).

13. Exception to Finding of Fact No. 241. Rejected. With regard to NWHRWF, the

ALJ's other findings cited by Pinellas only stand for the proposition that pumping at "current

quantities" from said wellfield meets the permitting criteria. In the subject finding of fact,

however, the ALJ found that a criterion was not met if withdrawals were "in excess of the

quantities currently being pumped." Therefore, there is no inconsistency between the ALJ's

, findings. The proposition that environmental impacts will worsen if withdrawals increase from

current quantities is supported by competent substantial evidence in the record, including the

following: Tr-Vol. 26A, p. 55-56, 58-60, 77-79, Vol. 27A, p. 46-47, Vol. 27B, p. 64-65, Vol.

28A, p. 110-111 (J. Emery); Vol. 14A, p. 77 (B. Ormiston).

14. Exception to Finding of Fact No. 242. Rejected. This finding of fact is based

upon competent substantial evidence in the record, including the following: Tr-Vol. 26B, p. 86-

92, 108-109; Vol. 28A, p. 111-112; Vol. 26A, p. 94-96, 99-101, Vol. 26B, p. 11-15, 20-28, 34-

36, 39-41, 44-46, 48-49 (J. Emery); Vol. 22A, p. 87-95, Vol. 22B, p. 71-74 (L. Bartos); Exhibit

Nos. A-110, 598A-1, 596-A, 596-B, 596-C and 596-D.

Pinellas' argument that the District is utilizing non-rule policy in its application of Rule

40D-2.301(1)(d) is without merit. The ALJ and the District applied the plain meaning of the rule


17









language in concluding that this criterion had not been satisfied.

15. Exception to Finding of Fact No. 248. Rejected. This finding of fact is based

upon competent substantial evidence in the record, including the following: Tr-Vol. 19A, 64-65,

115-116 (Stewart), Vol. 8A, p. 53-54, 65 (D. Wiley); Vol. 9B, p. 12-13 (J. Bays).

16. Exception to Finding of Fact No. 269. Rejected. The ALJ recommended that

restrictions be placed on the NWHRWF permit, such as: 10 year duration, environmental

monitoring and the "Good Neighbor Policy." See Recommendation, paragraphs "a", "c" and "d".

The Authority's "agreement" to accept a permit with only the standard permit conditions can be

fairly characterized as an unrestricted default permit. The Governing Board notes that the

Authority did not object to this finding of fact. Thus, the ALJ's description of the Authority's

position was appropriate.

17. Exceptions to Findings of Fact Nos. 270 and 283. Rejected. Conditions may be

attached to default permits. Manasota-88. Inc. v. Agrico Chemical Co., 576 So.2d 781, 783 (Fla.

2d DCA 1991). The ALJ was unpersuaded that the Authority should get a permit without any

conditions attached. His finding should be upheld. As to the permit duration issue, the ALJ

appropriately found elsewhere (Finding of Fact No. 44), that there was no evidence supporting an

extension of the District's standard ten year permit term. The Authority, which is the sole

applicant for NWHRWF, did not file exceptions to these findings of fact by the ALJ, thus, it

apparently agrees that it is not entitled to an unrestricted permit.

18. Exception to Finding of Fact No. 284. Rejected. The Governing Board hereby

adopts the ruling on Exception'Nos. 2 and 17 above as the basis for its rejection of this

exception.





S .



19. Exception to Conclusion of Law No. 289. Rejected. This conclusion is supported

by competent substantial evidence in the record, including the following: Tr- Vol. 28B, p. 81-82

(J. Guida). The Governing Board also concludes that the ALJ was correct as a matter of law.

Section 373.223, F.S., applies to all water use permit applications, including renewals of permits

for water uses which began prior to the District's water use regulation program. Tr- Vol. 28B, p.

81-82 (J. Guida).

20. Exception to Conclusion of Law No. 307. Rejected. Pinellas does not challenge

the accuracy of what the ALJ concluded; it simply contends that the ALJ should have found that

the District stipulated to more conditions for issuance. This is not a proper exception. The ALJ's

conclusion is based upon competent substantial evidence in the record, including the Joint

Prehearing Stipulation, paragraph 21.c.

21. Exception to Conclusion of Law No. 309. Rejected. See the rulings on Exception

Nos. 4 and 6 for the basis for this rejection.

22. Exception to Conclusion of Law No. 310. Accepted. See the rejection of this

conclusion of law in the final order.

23. Exception to Conclusion of Law No. 311. Accepted and rejected in part. This

conclusion of law is rejected as it relates to NWHRWF. See rejection of this conclusion in the

final order. The conclusion of law is accepted and Pinellas' exception is rejected with regard to

the three City wellfields. See the rulings on Exceptions Nos. 6, 8 and 11 for the basis for this

rejection.

24. Exception to Conclusion of Law No. 312. Rejected. See the rejection of

Exception No. 12 for the basis for this rejection.









25. Exception to Conclusion of Law No. 313. Rejected. See the rejection of

Exception No. 13 for the basis for this rejection.

26. Exception to Conclusion of Law No. 314. Rejected. See the rejection of

Exception No. 14 for the basis for this rejection.

27. Exception to Conclusion of Law No. 320. Rejected. See the rejection of

Exception Nos. 2 and 17 for the basis for this rejection.

28. Exception to Recommendation "a". Rejected. See the rejection of Exception

Nos. 2 and 17 for the basis for this rejection.

29. Exception to Recommendation "b". Rejected. See the findings on Exception

Nos. 4 and 6-15 for the basis for this rejection. The ALJ's failure to recommend peak monthly

quantities is irrelevant with respect to the three City wellfields since those applications are being

denied. With respect to NWHRWF, the District is granting peak monthly quantities. See Exhibit

"C" attached'aerati

30. Exception to Recommendation "d". Rejected. The recommended order is a

complete package. Pinellas erroneously argues that since the ALJ elsewhere in the recommended

order found that NWHRWF complies with the pertinent permitting criteria, it is unnecessary for

the Good Neighbor Policy to be made a permit condition. Presumably, the ALJ was aware of his

own recommended permit conditions, and it was the existence of those recommended permit

conditions that enabled him to conclude that the permitting criteria had been met. Moreover,

contrary to Pinellas' assertions, the Authority by way of its General Manager has agreed to the

Good Neighbor Policy being made a condition of the permit. See Vol. 31B, p. 32-33 (J.

Maxwell). The Authority did not object in its exceptions to the Good Neighbor Policy being









made a permit condition. In fact, the Authority urged that the final order incorporate

the ALJ's recommendations. See the Authority's Exceptions to the Recommended Order

at p 14. .Additionally, Pinellas basically agreed to the Good Neighbor Policy being made a

permit condition in its Closing Argument at page 142. Pinellas' objection to this recommended

permit condition is groundless.

31. Exception to Recommendation "e". Rejected. As stated in the ruling on

Exception No. 30 above, presumably the ALJ deemed the recommended permit conditions as

necessary to his conclusion that the pertinent permitting criteria were satisfied. Section

403.064(3), F.S., poses no bar to the District requiring expanded reuse efforts. To the contrary,

Section 373.250, F.S., encourages the District to require reuse.

32. Exceptions filed by the Authority and the City. These exceptions are ruled on

above in the rulings on those parties' exceptions.

EXCEPTIONS FILED BY THE DISTRICT

1. Exceptions filed by Pasco County. These exceptions are ruled on below in the

rulings on the Pasco County exceptions.

2. No ruling is necessary as to this paragraph.

3. Exception to Conclusion of Law No. 292. Accepted. See the treatment of this

conclusion of law in the final order.

4. Exception to Conclusion of Law No. 295. Rejected. The Governing Board has

accepted the ALJ's conclusion of law, but has commented on the conclusion of law and made

points similar to those made by the District in its exception.

5. Exception to Conclusion of Law No. 296. Rejected. The District has not objected









to the wording of the conclusion of law itself; instead, it has proposed additional language. The

Governing Board does not believe that the suggested language needs to be added to this

conclusion of law. Elsewhere in the final order the Governing Board has made clear that past

permitting of adverse impacts does not compel the District to issue a renewal permit.

6. Exception to Conclusion of Law No. 298. Rejected. The Governing Board agrees

with the District that this "conclusion of law" is not really a conclusion of law. Rather, it is a

finding of fact. As a finding of fact, it cannot be rejected unless it is unsupported by competent

substantial evidence. At the hearing there certainly was disagreement as to the establishment of a

baseline. The Governing Board states its position on baseline as a matter of law in Conclusion of

Law No. 299.

7. Exception to Conclusion of Law No. 299. Accepted. See the Governing Board's

rejection of this conclusion of law in the final order.

8. Exception to Conclusion of Law No. 301. Accepted. See the Governing Board's

rejection of this conclusion of law in the final order.

9. Exception to Conclusion of Law No. 308. Accepted. See the Governing Board's

rejection of this conclusion of law in the final order.

10. Additional proposed conclusions of law. Accepted and rejected. Some of the

proposed conclusions of law have been accepted and some have been rejected. There is no legal

requirement to rule specifically on proposed additional conclusions of law.

EXCEPTIONS FILED BY PASCO COUNTY

l.a. Exception to Finding of Fact No. 149. Rejected. While the Governing Board

agrees that the District did not know of the extent or severity of the adverse environmental





Si
S. ... J i

impacts which ultimately occurred due to the wellfields, the ALJ's finding is supported by

competent substantial evidence in the record, including the staff reports (Exhibit Nos. P-109,

Sect. 21, 81), Board orders (Exhibit Nos. P-114, P-87) and permits (Exhibit Nos. P-116,.P-115,

P-88) which last authorized withdrawals from the three City wellfields. See also Tr-Vol. 3B, p.

36, 90-91 (A. Adams); Vol. 6B, p. 31, Vol. 7B, p. 25-26 (D. Wiley). As to Pasco's argument that

the granting of the public interest exceptions previously for the wellfields not meaning that the

District found the impacts to be acceptable, the ALJ did not state in this finding of fact that the

District found the impacts to be acceptable, therefore, Pasco's argument is irrelevant.

b. Exception to Finding of Fact No. 151. Rejected. While the Governing Board

disagrees with the proposition that the adverse environmental impacts have not exceeded the

adverse impacts which were previously permitted, the ALJ's finding is supported by competent

substantial evidence in the record, including the staff reports (Exhibit Nos. P-109. Sect. 21, 81),

Board orders (Exhibit Nos. P-1 14, P-87) and permits (Exhibit Nos. P-1 16, P-115, P-88) which

last authorized withdrawals from the three City wellfields. See also Tr-Vol. 3B, p. 36, 90-91 (A.

Adams): Vol. 6B, p. 31, Vol. 7B, p. 25-26 (D. Wiley).

c. Exception to Finding of Fact No. 158. Accepted. The Governing Board has

rejected this "finding of fact," which in reality is a conclusion of law, because it is incorrect. See

the final order for the Governing Board's treatment of this "finding of fact."

d. Exception to Finding of Fact No. 171. Accepted. See the rejection of this finding

in the final order.

e. Exception to Finding of Fact No. 173. Accepted. See the rejection of this finding

in the final order.









f. Exception to Finding of Fact No. 174. Rejected. The caveat: "when pumpage

occurs in conjunction with drought conditions or other external forces," which was added by

Pasco in its exception, was not part of the ALJ's finding. Thus, Pasco has not taken exception

with what the ALJ actually found. As such, the exception is not appropriate and is rejected.

g. Exception to Finding of Fact No. 175. Rejected. This finding of fact is supported

by competent substantial evidence in the record, including the following: Tr-Vol. 8B, p. 88-95

(R. Knight); Vol. 9B, p. 15-17, 64-66, Vol. 30A, p. 8-11, 62-63 (J. Bays); Vol. 12B, p. 107, Vol.

13A, p. 84-85 (P. NeSmith).

h. Exception to Finding of Fact No. 178. Accepted. See the rejection of this finding

in the final order.

i. Exception to Finding of Fact No. 182. Accepted. See the rejection of this finding

in the final order.

j. Exception to Finding of Fact No. 188. Rejected. While the Governing Board

disagrees with the implication by the ALJ that the District denied the subject applications in

order to remedy past environmental impacts, the finding of fact is not inaccurate. The District

proposed denial of the subject applications because the Applicants failed to meet the conditions

for issuance of permits. See Exhibit A-100.

k. Exception to Finding of Fact No. 190. Accepted. See the rejection of this finding

in the final order.

1. Exception to Finding of Fact No. 198. Rejected. This finding of fact is supported

by competent substantial evidence in the record, including the following: Tr-Vol. 2B, p. 13-14

(A. Adams); Vol. 6B, p. 38-39, Vol. 8A, p. 72 (D. Wiley).









m. Exception to Finding of Fact No. 199. Rejected. While the Governing Board

agrees, as contended by Pasco, that the District did not know of the severity or extent of adverse

environmental impacts which would occur as a result of the withdrawals, the first sentence of the

ALJ's finding is supported by competent substantial evidence in the record, including the

following: Tr-Vol. 2B, p. 13-14 (A. Adams); Vol. 6B, p. 38-39, Vol. 8A, p. 72 (D. Wiley);

Exhibit Nos. P-109, Sect. 21, 81, P-114, P-87, P- 16, P-115, P-88; and Tr-Vol. 3B, p. 36, 90-91

(A. Adams); Vol. 6B, p. 31, Vol. 7B, p. 25-26 (D. Wiley). Concerning Pasco's objection to the

second sentence, the caveat: "when pumpage occurs in conjunction with drought conditions or

other external conditions," was not included in the ALJ's finding, thus, Pasco's exception is not

appropriate.

n. Exception to Finding of Fact No. 200. Accepted. See the rejection of this finding

in the final order.

2. No ruling is necessary as to this paragraph.

3. Exception to Conclusion of Law No. 292. Accepted and rejected in part. That

portion of the exception which addresses the issue of baseline is addressed in Conclusion of Law

No. 299 in the final order. That portion of the exception which recommends that the Governing

Board add to the conclusion of law to make clear that under the performance standards existing

withdrawals are subject to cessation or limitation, has been accepted and included in the final

order.

4. Exception to Conclusion of Law No. 295. Rejected. Although the Governing

Board disagrees with the ALJ, there is competent substantial evidence upon which he could find

that in prior permitting the District accepted the impacts. See the staff reports (Exhibit Nos. P-


rc-r
25 T.: "-:

FL X 'T C .









109, Sect. 21, 81), Board orders (Exhibit Nos. P-114, P-87) and permits (Exhibit Nos. P-116, P-

115, P-88). See also Tr-Vol. 3B, p. 36, 90-91 (A. Adams); Vol. 6B, p. 31, Vol. 7B, p. 25-26 (D.

Wiley). However, see the Governing Board's comment with regard to Conclusion of Law No.

295 in the final order, where the Board concluded that past permitting of adverse impacts does

not create an obligation on the part of the Governing Board to permit continuing impacts.

5. Exception to Conclusion of Law No. 296. Rejected. Although the Governing

Board disagrees with the ALJ, there is competent substantial evidence upon which he could find

that the District previously permitted withdrawals which resulted in adverse impacts, with

knowledge that impacts would occur. See the staff reports (Exhibit Nos. P-109, Sect. 21, 81),

Board orders (Exhibit Nos. P-l 14, P-87) and permits (Exhibit Nos. P-116, P-115, P-88). See

also Tr-Vol. 3B, p. 36, 90-91 (A. Adams); Vol. 6B, p. 31, Vol. 7B, p. 25-26 (D. Wiley).

6. Exception to Conclusion of Law No. 298. Rejected. The Governing Board agrees

with Pasco that this "conclusion of law" is not really a conclusion of law. Rather, it is a finding

of fact. As a finding of fact, it cannot be rejected unless it is unsupported by competent

substantial evidence. At the hearing there certainly was disagreement as to the establishment of a

baseline. The Governing Board states its position on baseline as a matter of law in Conclusion of

Law No. 299.

7. Exception to Conclusion of Law No. 299. Accepted. See the Governing Board's

rejection of this conclusion of law in the final order.

8. Exception to Conclusion of Law No. 301. Accepted. See the Governing Board's

rejection of this conclusion of law in the final order.

9. Exception to Conclusion of Law No. 308. Accepted. See the Governing Board's









rejection of this conclusion of law in the final order.

10. Additional proposed conclusions of law. Accepted and rejected. Some of the

proposed conclusions of law have been accepted and some have been rejected. There is no legal

requirement to rule specifically on proposed additional conclusions of law.

EXCEPTIONS FILED BY HILLSBOROUGH COUNTY

1. No ruling is necessary as to this paragraph.

2. Exception to Finding of Fact No. 149. Rejected. While the Governing Board

agrees that the District did not know of the extent or severity of the adverse environmental

impacts which ultimately occurred due to the wellfields, the ALJ's finding is supported by

competent substantial evidence in the record, including the staff reports (Exhibit Nos. P-109,

Sect. 21, 81), Board orders (Exhibit Nos. P-114, P-87) and permits (Exhibit Nos. P- 116, P-115,

P-88) which last authorized withdrawals from the three City wellfields. See also Tr-Vol. 3B, p.

36, 90-91 (A. Adams); Vol. 6B, p. 31, Vol. 7B, p. 25-26 (D. Wiley).

3. Exception to Finding of Fact No. 151. Rejected. While the Governing Board

disagrees with the proposition that the adverse environmental impacts have not exceeded the

adverse impacts which were previously permitted, the ALJ's finding is supported by competent

substantial evidence in the record, including the staff reports (Exhibit Nos. P-109, Sect. 21, 81),

Board orders (Exhibit Nos. P- 14, P-87) and permits (Exhibit Nos. P- 16, P-l 15, P-88) which

last authorized withdrawals from the three City wellfields. See also Tr-Vol. 3B, p. 36, 90-91 (A.

Adams); Vol. 6B, p. 31, Vol. 7B, p. 25-26 (D. Wiley).

4. Exception to Finding of Fact No. 157. Rejected. While the Governing Board

agrees that the District did not know of the extent or severity of the adverse environmental


27.. -
.- .. ... ... --" \




t-- -7-



impacts which ultimately occurred due to the wellfields, the ALJ's finding is supported by

competent substantial evidence in the record, including the staff reports (Exhibit Nos. P-109,

Sect. 21, 81), Board orders (Exhibit Nos. P-l 14, P-87) and permits (Exhibit Nos. P-116, P-115,

P-88) which last authorized withdrawals from the three City wellfields. See also Tr-Vol. 3B, p.

36, 90-91 (A. Adams); Vol. 6B, p. 31, Vol. 7B, p. 25-26 (D. Wiley). However, as is stated in the

final order, past permitting of adverse impacts is irrelevant in light of the expiration of the

permits.

5. Exception to Finding of Fact No. 158. Accepted. The Governing Board has

rejected this "finding of fact," which in reality is a conclusion of law because it is incorrect. See

the final order for the Governing Board's treatment of this "finding of fact."

6. Exception to Finding of Fact No. 171. Accepted. See the rejection of this finding

in the final order.

7. Exception to Finding of Fact No. 173. Accepted. See the rejection of this finding

in the final order.

8. Exception to Finding of Fact No. 178. Accepted. See the rejection of this finding

in the final order.

9. Exception to Finding of Fact No. 182. Accepted. See the rejection of this finding

in the final order.

10. Exception to Finding of Fact No. 188. Rejected. While the Governing Board

disagrees with the implication by the ALJ that the District denied the subject applications in

order to remedy past environmental impacts, the finding of fact is not inaccurate. The District

denied the subject applications because the Applicants failed to meet the conditions for issuance








of permits. See Exhibit A-100.

11. Exception to Finding of Fact No. 190. Accepted. See the rejection of this finding

in the final order.

12. Exception to Finding of Fact No. 198. Rejected. This finding of fact is supported

by competent substantial evidence in the record, including the following: Tr-Vol. 2B, p. 13-14

(A. Adams); Vol. 6B, p. 38-39, Vol. 8A, p. 72 (D. Wiley).

13. Exception to Finding of Fact No. 200. Accepted. See the rejection of this finding

in the final order.

14. Exception to Conclusion of Law No. 292. Accepted. See the treatment of this

conclusion of law in the final order.

15. Exception to Conclusion of Law No. 295. Rejected. Although the Governing

Board disagrees with the ALJ, there is competent substantial evidence upon which he could find

that in prior permitting the District accepted the impacts. See the staff reports (Exhibit Nos. P-

109, Sect. 21, 81), Board orders (Exhibit Nos. P- 14, P-87) and permits (Exhibit Nos. P-116, P-

115, P-88). See also Tr-Vol. 3B, p. 36, 90-91 (A. Adams); Vol. 6B, p. 31, Vol. 7B, p. 25-26 (D.

Wiley). However, see the Governing Board's comment with regard to Conclusion of Law No.

295 in the final order, where the Board concluded that past permitting of adverse impacts does

not create an obligation on the part of the Governing Board to permit continuing impacts.

16. Exception to Conclusion of Law No. 296. Rejected. Although the Governing

Board disagrees with the ALJ, there is competent substantial evidence upon which he could find

that the District previously permitted withdrawals which resulted in adverse impacts, with

knowledge that impacts would occur. See the staff reports (Exhibit Nos. P-109, Sect. 21, 81),









Board orders (Exhibit Nos. P-1 14, P-87) and permits (Exhibit Nos. P-116, P-115, P-88). See

also Tr-Vol. 3B, p. 36, 90-91 (A. Adams); Vol. 6B, p. 31, Vol. 7B, p. 25-26 (D. Wiley).

17. Exception to Conclusion of Law No. 297. Accepted and rejected in part. The

Governing Board accepts the objection to the ALJ's mistaken reference to "exemptions" instead

of "exceptions." See the partial rejection of this conclusion of law in the final order. The

Governing Board declines Hillsborough's invitation to make the addition to this conclusion of

law.

18. Exception to Conclusion of Law No. 298. Rejected. The Governing Board agrees

with Hillsborough that this "conclusion of law" is not really a conclusion of law. Rather, it is a

finding of fact. As a finding of fact, it cannot be rejected unless it is unsupported by competent

substantial evidence. At the hearing there certainly was disagreement as to the establishment of a

baseline. The Governing Board states its position on baseline as a matter of law in Conclusion of

Law No. 299.

19. Exception to Conclusion of Law No. 299. Accepted. See the Governing Board's

rejection of this conclusion of law in the final order.

20. Exception to Conclusion of Law No. 301. Accepted. See the Governing Board's

rejection of this conclusion of law in the final order.

21. Exception to Conclusion of Law No. 308. Accepted. See the Governing Board's

rejection of this conclusion of law in the final order.

22. Additional proposed conclusions of law. Accepted and rejected. Some of the

proposed conclusions of law have been accepted and some have been rejected. There is no legal

requirement to rule specifically on proposed additional conclusions of law.




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